Virginia’s Anti-Blacklisting Law, VA Code § 40.1-27, generally prohibits employers from willfully or maliciously preventing or attempting to prevent a former employee from obtaining new employment. While the statute does not describe a private cause of action, the conduct it prohibits could give rise to common law claims of tortious interference with contractual relationships or business expectancy. These common law claims may also apply to conduct by former employers that is not expressly prohibited by the Anti-Blacklisting Law.
The Anti-Blacklisting Law prohibits any person doing business in Virginia or agent of such person from “willfully and maliciously” preventing or attempting to prevent a former employee from obtaining new employment:
No person doing business in this Commonwealth, or any agent or attorney of such person after having discharged any employee from the service of such person or after any employee shall have voluntarily left the service of such person shall willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, such discharged employee or such employee who has voluntarily left from obtaining employment with any other person.
VA Code § 40.1-27. The law further provides for fines in the event of a violation:
For violation of this section the offender shall be guilty of a misdemeanor and shall, on conviction thereof, be fined not less than $100 nor more than $500.
The Anti-Blacklist Law also makes clear that certain types of truthful statements are not prohibited:
But this section shall not be construed as prohibiting any person from giving on application for any other person a truthful statement of the reason for such discharge, or a truthful statement concerning the character, industry and ability of such person who has voluntarily left.
Tortious Interference Claims
Although the Anti-Blacklisting Law does not explicitly state a private cause of action, the conduct it prohibits could give rise to common law claims of tortious interference with contractual relationships or business expectancy.
In Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207, 216 (2014), the Virginia Supreme Court stated the necessary elements for a claim of tortious interference with contractual relationships or business expectancy as follows:
(1) the existence of a valid contractual relationship or business expectancy;
(2) knowledge of the relationship or expectancy on the part of the interferor;
(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and
(4) resultant damage to the party whose relationship or expectancy has been disrupted.
Id. (quoting Chaves v. Johnson, 230 Va. 112 (1985)).
If a contract is terminable at will (as is the case with most employment contracts) or involves only a contract or business expectancy, “a plaintiff, in order to present a prima facie case of tortious interference, must allege and prove not only an intentional interference …, but also that the defendant employed “improper methods.” Dunlap, 287 Va. at 216 (citations and internal quotes omitted).
“Methods of interference considered improper are those means that are illegal or independently tortious, such as violations of statutes, regulations, or recognized common-law rules.” Id. (quoting Duggin v. Adams, 234 Va. 221, 227 (1987)). Improper methods may include “violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship.” Id. (quoting Dunn, McCormack & MacPherson, 281 Va. 553, 559 (2011)). The Court observed that methods may be improper if “they violate an established standard of a trade or profession, or involve unethical conduct[, s]harp dealing, overreaching, or unfair competition.” Id. (quoting Dunn at 559).
Under these standards, an employer who violates the Anti-Blacklisting Law by “willfully and maliciously” preventing a former employee from obtaining new employment, such as by making false statements about the former employee to the prospective employer, may be liable to the former employee on a common law claim of tortious interference with business expectancy.
In sum, Virginia’s Anti-Blacklisting Law generally prohibits employers from willfully or maliciously preventing or attempting to prevent a former employee from obtaining new employment. While the statute does not describe a private cause of action, the conduct it prohibits could give rise to common law claims of tortious interference with contractual relationships or business expectancy.
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