Question: I read your article about a current employer contacting a prospective employer and affecting potential employment. (Note: To read that article [click here].) I recently found myself in a similar situation.

Upon receiving a job offer from another company I told my manager about the offer, and said that I was seriously considering it. He said he would like to see the offer, so I provided it. He told me he would be coming back with a counter offer. A few days passed and things were delayed due to the death of a co-worker. They never came back with a counter offer, and the prospective employer all of a sudden rescinded its offer, providing no reason.

My manager told me the CEO contacted the other company’s CEO. Needless to say I wasn’t very happy with the situation, suspecting foul play. As it happens, my mother knows the other company’s recruiter, and learned that my current CEO had called the other CEO and gave him a hard time about him “taking” his employees.

Is this legal? Have you heard of employers getting sued in situations like this? If so, what was the outcome?

Michael
City and State Not Provided

Answer: Dear Michael:
   
Our law is based in common experience, common sense, and a common view of what is fair. For this reason, those who go out of their way to “interfere” with another’s potential business (including employment) relations without a “good reason” are liable to those they hurt as a result. The law varies from state to state, but most states take such a view. Why? Because we all share common experience, common sense, and a common view that going out of your way to hurt another’s life is just not right.     

1. First, though, I share my view that you were unwise to share the offer. I don’t know why you shared the offer with your manager, but I generally caution against doing so. While it seems to invite a counter offer, it usually ends poorly, as it did in your case: you’ve probably not done yourself any favors with either your present employer or the prospective employer. Not the best result.  

2. In most states, this kind of activity could give rise to a legal claim for “tortious interference with prospective business relations.” This is the legal claim (what lawyers call a “cause of action”) for the kind of thing you describe. It doesn’t just exist in the context of employment, but in all types of business relations. It has a “cousin” called “tortious interference with contractual relations,” but that requires the existence of a contract, which you don’t describe here. However, as in all cases, the facts are the most important part of any “case.”

3. There are four “elements” of this legal claim that all need to be proven. In New York, and in many other states, these are the four elements that must exist to win such a claim: (i) a potential business (including employment) relation; (ii) interference with that relation by a third party; (iii) the interference had no good purpose, but was intended only to harm, or used dishonest, unfair or improper means, and (iv) the potential relation was harmed, disrupted or destroyed.    

The “weak link” in any claim you might bring is element (iii). It could very easily be said that your employer – from his or her point of view – had a very understandable reason to do what he or she did: to keep you. I would not be surprised if you don’t feel that “keeping you” is a valid purpose to do what he did, but it might, again, depending on the facts.

4. When the facts support these claims, most employees win their suits. While these “tortious interference” lawsuits are not that common, they do arise and are successful, if the facts support the claim.

In your case, I don’t know enough of the facts to tell you if you might be successful. I do, though, focus my thoughts on element (iii): Did your present employer either not have a “good reason” to do what he did – I think he did – or did he use “dishonest, unfair or improper means.” I don’t know from what you’ve told me. If I was your attorney, I would strongly suggest you go back to your mother, and perhaps the prospective employer, and find out more of what happened.

5. That said, I think your “sharing” the offer would seem like “bargaining” for a counter offer, and not help you. Besides the law, and besides the facts, what is “fair” is important in lawsuits, too. We are all humans, and juries are humans, too, and we are swayed by emotion. I always think that “bargaining for a counter offer” seems unfair, unseemly or just somehow not right to some people. That is one of the reasons I discourage people from doing so. That appearance would likely hurt you in front of a jury or judge, if you went to court. Attorneys love to have “angels” for clients; we have great concern when our clients show what some people might consider “devilish” ways.

Sorry for being so wordy, but the “tortious interference” area of employment law is a bit tricky to explain.

Thanks for writing in. Hope you’ll share the value of our blog with your friends.

Best,
Al Sklover

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© 2011 Alan L. Sklover, All Rights Reserved.