A recent opinion by the Dallas Court of Appeals demonstrates that conduct in violation of an employment agreement may also constitute tortious interference.
In that case, two companies provided in-home nursing care for seriously ill pediatric patients. Several employees of Company A went to work for Company B, including the Chief Operating Officer, a case manager and an employee who worked in scheduling. All of the employees at Company A signed a “Confidential and Proprietary Information Agreement” which included nondisclosure and nonsolicitation provisions.
Company A sued Company B, the chief operating officer, the case manager, and the other employee for breach of their employment agreements, tortious interference, and other claims. At trial, the jury found in favor of Company A against Company B, the chief operating officer and the case manager.
The appellate court pointed out that the evidence at trial showed that when the case manager and the other employee joined Company B, they were responsible for opening a new branch office. When that office opened, it had 12 patients, 11 of whom had transferred from Company A. The CEO of Company A testified that other employees and patients had left Company A in the past; however, they had never had 11 patients leave in one day, much less that many patients transfer to the same agency. The transfers were also unusual in that the attending nurses of these patients had also left.
There was evidence at trial that the patient lists included schedules, care plans, billing information, and patient and employee contact information. This information was password protected. A nurse who worked for Company A testified that when the employee was leaving Company A, she told the nurse that she was going to use the list of patients from Company A and give them the contact information for Company B. The employee said she was working with the case manager.
With respect to the Chief Operating Officer, there was evidence that he knew that the case manager and employee were soliciting patients of Company A and told the case manager not to contact any patients or nurses. He hired an attorney to investigate, yet he did not ask any of the parents of the patients whether they were solicited. He also did not ask any of the transferring nurses whether they were solicited. The court noted that there was no evidence that he refused to allow transferring patients to receive care from Company B until he had investigated the situation.
In its opinion, the court noted that use of the confidential information to solicit patients constituted both a breach of the nondisclosure and nonsolicitation agreements as well as tortious interference with Company A’s agreements with its employees and clients. The court of appeals held that there was sufficient evidence for the jury to conclude that the chief operating officer, the case manager and the other employee had breached their employment agreements and engaged in tortious interference.
As this opinion indicates, conduct that violates an employment agreement may also be actionable through other claims such as tortious interference.