The Virginia Business Litigation Blog
Employees bound to non-solicitation agreements know they can get in trouble with their former employer if they try to recruit their former colleagues to join them at a competing company. What many don’t realize is that the new employer can also wind up in legal trouble if it is aware of the non-solicitation (or-noncompetition) agreement and actively encourages the employee to violate its terms. The new employer didn’t sign the non-solicitation agreement and obviously isn’t bound by its terms but can be held liable for “tortious interference” when certain requirements are met.
Under Virginia law, a claim for tortious interference with contract requires four elements: (1) A valid contractual relationship or business expectancy; (2) Knowledge of that relationship by the defendant; (3) Intentional interference causing a breach or termination; and (4) Resultant damages. In the recent case of Brillient Corp. v. RELI Group, Inc., the defendant sued for tortious interference with a non-solicitation contract tried to get the case dismissed by arguing that despite its knowledge of the contract, its terms had not been violated because the employees at issue applied for jobs of their own volition and had not been solicited or induced to do so by the defendant. The Eastern District of Virginia rejected the argument and allowed the claim to proceed.
Brillient Corporation, a Virginia-based IT services company, had partnered with RELI Group, Inc., a Maryland small business, to pursue a large TSA contract. After RELI was awarded the $111 million prime contract in 2019, Brillient performed substantial work under a subcontract, staffing up to 54 employees across multiple task orders. Brillient alleged that over time, RELI began removing or “backfilling” positions originally allocated to Brillient, leading to workshare disputes. In late May and early June 2024, RELI abruptly terminated five of Brillient’s active task orders—without prior performance concerns or engaging in the required good faith negotiations under the subcontract. Immediately after those terminations, Brillient claims RELI posted job openings that mirrored the roles Brillient’s employees had been performing, then hired at least 20 of those employees to continue working on the same TSA project—allegedly in violation of nonsolicitation agreements those employees had signed with Brillient. Brillient claimed RELI had prior notice of these restrictive covenants 
and still went forward with rehiring the employees, thereby tortiously interfering with those contractual provisions.
At the motion to dismiss stage, the allegations in the complaint (which are presumed to be true at this stage) were deemed clearly sufficient to establish that the non-solicitation agreements existed and that RELI was aware of them. The key issue was whether RELI intentionally interfered with those agreements and induced the employees to breach them. The non-solicitation clause at issue stated that the employee:
specifically agrees that during Employee’s employment with the Employer and for a period of one year after Employee’s employment with the Employer ceases, for whatever reason, the Employee will not, directly or indirectly…solicit or provide services to, or sell products to any Business Account of the Company that the Company provided services or products at any time during the six months prior to the termination of Employee’s employment.
The court prefaced its opinion by pointing out that the intentional-interference element of the tort does not require that a defendant “act[] for the primary purpose of interfering with the performance of the contract.” (See DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140, 146 (2009) (holding that it is enough if a defendant “does not act for the purpose of interfering with the contract…but knows that the interference is certain or substantially certain to occur as a result.”))
The court found that even if RELI had not actively solicited the employees and had merely, as it claimed, hired them as a result of their independent applications submitted in response to its website job posting, the allegations in the complaint were sufficient to state a valid claim for tortious interference. The complaint alleged that RELI abruptly terminated various task orders, then immediately posted job positions on its website listing qualifications that were obviously targeted at the Brillient employees who were suddenly out of work. It then proceeded to hire “not just one or two, but twenty” of them, despite its knowledge of the non-solicitation agreements they were bound to. This, the court found, was sufficient to state a valid claim.
Note that the court did not hold that RELI had violated any non-solicitation agreement. That would be a breach of contract, not the tort of tortious interference. In fact, RELI argued it had done nothing improper due to a provision in its own contract with Brillient specifically permitting the hiring of former Brillient employees who apply for jobs without being solicited:
This restriction shall not preclude either Party from hiring, as an employee or consultant, any person, regardless of any relationship between that person and the other Party, who, acting independently and on their own initiative, responds to a public notice or advertisement of any employment opportunity.
The court was unmoved by this argument because (1) the complaint did not allege that RELI had violated that provision or any other contract; and (2) what the complaint did allege is that RELI had taken certain actions that went far beyond the mere posting of a job opportunity, which actions satisfied the elements of the tort claim.