Dear Virginia employee:
Whether you signed an employment agreement or not, you owe various legal duties to your employer.
Nope, its true.
And two of these unspoken duties, are that you will not interfere with your employer’s contracts or business expectancies.
So what does that practically mean?
Under Virginia common law, if an employer can prove: (a) it had a contract/business expectancy; (b) an employee had knowledge of that expectancy; (c) employee intentionally interfered with its business expectancy (d) through improper means or methods; and (e) your former employer was damaged as a result, then the employee might be facing a suit for tortious interference of contract or business expectancy. 
Examples of breach:
- Starting competing business and called old clients with the intent to get them to stop doing business with old company
- Telling customers you are going to leave (while you are employed) and ask them to go with you and breach contract with old company.
Why does this happen?
- Employees assume the customers are theirs.
- No non-compete so employees assume this is allowed.
- Employee has given notice and thinks that changes things.
- People tell customers before employers they are leaving.
Burden of proof:
Employer must prove all of the above elements under Virginia law, including improper methods.
Courts however have evolved on their understanding of the term: Methods considered “improper” include those that are illegal or independently tortious. Obviously, the requisite improper methods must have occurred prior to the termination of the contract in order to constitute the cause of the termination.
Damages: Again, must prove actual damages.
NEW EMERGING TORT OF HIRING EMPLOYEE WITH A NON-COMPETE, ASKING THEM TO COMPETE IN BREACH — deemed tort. interference
However, if Company B hires one of Company A’s former employees and obtains and uses Company A’s “inside or confidential information,” or otherwise engages in “unfair competition,” such acts constitute “improper methods or means” and thus support a claim for tortious interference with Company A’s terminable at will…
So, the more you know, hopefully, the less likely you are to breach your duty… or at the very least, get sued.
 Maximus, Inc. v. Lockheed Information Management System, Co., 254 Va. 408 (1997); Glass v. Glass, 228 Va. 39, 321 S.E. 2d 69, 77 (1984).
 See Hilb, Rogal and Hamilton Company v. DePew, 247 Va. 240, 246 n.4 (1994).
 Depuy Synthes Sales, Inc. v. Jones, 2014 U.S. Dist. LEXIS 37727, 13-14 (E.D. Va. Mar. 21, 2014) Note 2.
“Hey, congratulations on making partner,” someone says to me in the gym.
I wonder how on earth they know that and then I realize they probably got an email from LinkedIn notifying them of my promotion (albeit 6 months after the fact because I didn’t rush to change the title).
As most of us in the business world know, LinkedIn provides push notifications to your connections that may include your new contact information, job title, etc.
And for those of us who handle business litigation cases, we are seeing social medial (LinkedIn included) being used as evidence in cases where companies are alleging their ex-employees have breached their contracts, non-solicitations, violated fiduciary duties of loyalty, interfered with business expectancies etc.
The Courts are even being asked to determine if a LinkedIn push notification that says CONGRATULATE FRED ON HIS NEW JOB AS SALES MANAGER OF VIRGINIA WIDGETS LLC is a solicitation of past costumers in violation of a contract.
Thankfully, a client recently shared with me a little known (maybe not to the rest of the world but it was news to me) secret that you can stop LinkedIn from making these email announcements on your behalf.
HERE IS HOW:
1. Once signed in, click on your picture in the top right to go to “Account & Settings”, then select Review under “Privacy & Settings”.
2. Under Privacy Controls click on “Turn on/off your activity broadcasts”
3. In the resulting dialog box, *uncheck* the box. This will mean that activity updates aren’t automatically sent out. Of course, if folks navigate to your profile, they can see what has changed.
So, in light of this great development, my standard advice to employees leaving one job for another will change.
I advise folks to get the permission of company 1 (your old employer) to update your LinkedIn profile to include your new contact information once you leave. If they agree, great. If not, and you do it, it could be alleged such amendment is a solicitation and in violation of your contract. Further, it could be alleged your LinkedIn contacts are not your property, but the confidential and protected information of your old company. So permission is always better than forgiveness.
Now, I am going to advise clients to discuss LinkedIn when they leave, AND maybe turn off the push notifications. No, you won’t be hiding your new employment (because hiding things and being less than truthful leads to litigation) simply broadcasting it to a much smaller audience and not “soliciting” folks to follow your new job.
Of course, each situation is different and when you call our office, our legal advice is tailored to your situation, contract etc. This blog is not intended to be legal advice. Just a conversation. To continue the conversation or learn how you can try to avoid getting sued, call for more information at 540-985-0098.
Do you remember all the great light bulb jokes of the late 1990′s? You could directly insult any kind of person in just a few sentences – blondes, engineers, lawyers, doctors, etc.
The beauty of these terrible jokes was that the hyperbole was often based on some element of truth (** BUT FOR BLOND JOKES which are always baseless).*
So please, read the next few paragraphs with similar caution. I am exaggerating.
When a non-compete says Employee Fred must not:
(a) induce any current customer to end their business with company Virginia xyz for 1 year after Employee leaves the company,
- The Engineer reads the sentence to mean: He can speak to customers, sell them competing product, so long as he doesn’t overtly induce or tell them to stop doing business with his old company;. He can tell the customer to call him and wait for the customer to ask for the product. It’s just a technicality.
- The computer programmer reads the sentence to mean: I’m the man, and I won’t need to induce the customers because they will follow me anywhere.
- The doctor reads the sentence to mean: Not a problem, I won’t induce anyone because I don’t care if patients follow. I will get new patients. So it doesn’t apply to me.
- The salesman reads the sentence to mean: I can still sell the product, I just can’t tell them to stop buying from my old company. And I should go ahead and tell the client now I am leaving and plan to sell a different product in a few weeks.
- The government contractor reads the sentence to mean: Everyone knows these clauses are unenforceable, right?
- The accountant reads the sentence to mean: I can never open my own firm because I cannot provide services to someone without inducing that person to end business with my old firm. I am therefore an indentured servant.
- The car guy reads that sentence to mean: So I just give the customer my cell phone number instead, and no one knows right?
Yes, I am exaggerating.
Yes, I am being overly harsh. Yes, the above list is fictional and not based on actual clients. Just stereotypes.
But I am also speaking from experience that different types of people, read contractual obligations to mean different things. My job is to make it as clear as possible, what the actual prohibition is, provide advice on how to NOT break your contract (which is not the same as how to break your contract but cover it up) and how to feed your family without inviting a lawsuit.
The good news is, I can usually tell where my client is coming from – help translate the agreement, and create a path where actions do not invite litigation. That’s my job.
So, if you are not sure what the word “induce” actually means, I am happy to help.
I am also happy to share my favorite light blub jokes.
How many William and Mary students does it take to screw in a lightbulb? What? Light bulbs? This is Colonial Williamsburg, do you mean light a candle?
** Note the author of this blog is blonde and overly sensitive to blonde jokes, thus the disclaimer.
Dan Frith helps employees and businesses with non-compete contracts.
Lauren Ellerman assists clients throughout Virginia in business cases.
Lauren Davis has both her JD, and Masters Degree in Social Work. She is dedicated to serving her clients and their complex litigation needs.