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Hello, I am in need of assistance with an employment law question. Here are the facts:- I am an independent contractor that has been working through a consulting firm over the past year.
- The consulting firm is a partner with a software company that offered me a job.
- The consulting firm spoke with the software company (the hiring manager) and informed them that they could not hire me because of their partnership agreement. The consulting form then told the hiring manager from the software company that they would offer me a job and that the software firm could book me through them.
- The hiring manager withdrew the offer and said that their hands were tied with hiring me.
- The recruiting firm that found the job opportunity for me reviewed the partnership agreement (they have the same partnership agreement with the software company) and said that the consulting firm does not have "a leg to stand on" since I was not recruited by the software firm. The recruiting firm has in fact passed along various opportunities for months to me through the last few months.
- I have not yet worked out any job agreements with the consulting firm. I told the consulting firm that I am only interested in working on a retainer basis with them going forward. I provided a proposed retainer amount and have yet to hear back from them regarding my proposal.Here is my question? Do I have any legal recourse against the consulting firm since they prevented me from working for the software company (and missed out on $). If so what is my recourse?
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Answered in 10 minutes by:
8/30/2017
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer.

I'm sorry to hear about your situation. Unfortunately, you probably don't. There might be a case under defamation, but that would be difficult. First of all, you need to understand that New Jersey is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

Now defamation generally requires a false statement of material fact, communicated to a third party, that causes quantifiable economic damage. The problem here is that this "statement" by the consulting firm (that the contract says you can't do this) is not about you (it's about the contract and employment relationship between them and the software company), and furthermore is actually an opinion (an opinion as to the interpretation of the contract). Opinions are not actionable under defamation law either.

The other types of cases would be under "tortious interference".

There are two claims for tortuous interference: tortious interference with contract and tortious interference with prospective economic advantage. The primary distinction between the two is the existence of an enforceable contract. Each claim is intended to protect business relationships.

To establish a claim for tortious interference with contractual relations, a plaintiff must prove: (1) actual interference with a contract; (2) that the interference was inflicted intentionally by a defendant who is not a party to the contract; (3) that the interference was without justification; and (4) that the interference caused damage.

One acts “intentionally”, if they have known of the existence of a contract,” but are not a party to that contract. Thus, this claim does not involve a breach of contract case. Rather, this claim addresses the injury caused by a third party inducing a party to a contract to breach that contract. Viewed from the perspective of plaintiff’s counsel, having a claim against a party for inducing that breach provides two potential claims to recovery.

To prevail on a claim for tortious interference with prospective economic advantage, you must prove: a reasonable expectation of advantage from a prospective contractual or economic relationship; that the defendant interfered with this advantage intentionally and with malice – that is, without justification or excuse; that the interference caused the loss of the expected advantage; and that the injury caused economic damage.

So there either has to be an existing contract, which it doesn't sound like there was, between you and the software company, or "malicious" action by the consulting company. That's hard to prove, to be honest. If they can establish that they believed their contract prohibited this, even if they never read that contract, that would be enough to show that they didn't act intentionally with malice. The burden of proof to prove this malice would be on you.

In short, I'm afraid to say that you wouldn't have a case against this company. It's unfortunate, but that's the case. If you have the evidence to show that they acted intentionally with malice, take it to a business litigation attorney. But otherwise, I'm sorry to say you wouldn't have a case.

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I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Customer reply replied 10 months ago
Hello, thanks for the response. I do have a follow-up question. I did sign an employment contract with the software company but had not yet started with the company. Also, the consulting firm knew that if I started with the software company this would put them at a disadvantage. Do these two facts make a difference?

The fact that you signed a contract means that you might have a breach of contract action with the software company, and the tortious interference with contract relations claim might actually succeed. That being said, you need to contact an attorney in your area that deals with breach of contract cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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