In situations in which an employee leaves one company and goes to work for another, a tortious interference claim may be asserted against the departing employee or the new employer. Tortious interference claims come in two types: tortious interference with (an existing) contract, and tortious interference with prospective business relations.
A tortious interference with contract claim has the following elements: (a) a valid contract; (b) willful and intentional interference with the contract; (c) interference that proximately causes the plaintiff’s injury; and (d) actual damage or loss.
A tortious interference claim can arise if a third party induces another’s employee to breach his contract of employment for the purpose of obtaining the employee as his own or with the intent to injure the former employer. However, it must be shown that the third party’s interference was the proximate cause of the breach of the relationship, and there is no actionable wrong if the employee acted on his own initiative.
A plaintiff must show that the defendant knowingly induced the employee or took an active part in persuading the employee to leave his job with the former employer. Courts have held that it is not enough that the new employer reaped the advantages of a broken contract after the contracting party had withdrawn from the commitment on his own volition; it is incumbent upon the plaintiff to show that the new employer actually caused or brought about the interference. Terminable-at-will contracts may be the subject of a tortious interference claim.
Another type of tortious interference claim can arise when a third party tortiously interferes with a noncompete agreement between an employer and its employee. An employer who believes that its ex-employee has violated her noncompete agreement may, in addition to suing the employee to enforce the noncompete agreement, sue the “new” employer for tortious interference.
Another type of claim typically asserted in these situations is tortious interference with prospective business relations. The elements are (a) there was a reasonable probability that the plaintiff would have entered into a business relationship with a third person; (b) intentional interference with the relationship; (c) the defendant’s conduct was independently tortious or unlawful; (d) the interference proximately caused the plaintiff’s injury; and (e) the plaintiff suffered actual damage or loss. The plaintiff does not have to prove that the contract would have been made but for the interference. The plaintiff only must show that the formation of a contract was reasonably probable. These claims often arise with respect to prospective customers or employees.