Originally Posted by RedsBaron
WV generally recognizes a claim for tortious interference with the right to employment in certain contexts. For example, if Mary Jones attempts to gain employment with Company B and Company A then attempts to prevent her from taking the job because she allegedly is subject to a covenant not to compete, if a court later determines that the covenant not compete is unenforceable, then Mary Jones may have a claim against Company A for interfering with her ability to accept the job offer from Company B.
My advice to employers in WV is, when in doubt, to err on the side of not attempting to enforce covenants not to compete. We only try to enforce such covenants when we are certain the covenant will be upheld.
That's interesting, RB. I've heard of cases in which Company A sued Company B for tortious interference when Company B lured a contracted employee away. But I hadn't considered a potential tortious interference counterclaim from an employee if Company A attempts to enforce a non-enforcable non-compete agreement.
The new position she has accepted with Company B is for a different job function (database management versus web development) in a completely different industry (banking versus marketing). Realistically, there's zero chance that any information she may have already been privy to with Company A could be used in any fashion by her or her new company to negatively impact Company A.
In any case, I'm not sure that a covenant not to compete actually exists. My wife has never seen it and, thus, certainly hasn't signed one. However, as the offer letter includes a requirement to sign a non-compete agreement as a condition of employment (the only non-compete language existing in said offer letter), could an Company A successfully argue, in WV of course, that the signing an offer letter requiring a non-compete agreement at a later date represents a coventent not to compete?
I'm probably over-thinking this one as the threat of a lawsuit is likely just a manifestation of frustration from Company A.