What can employers do LEGALLY? Can they SUE me?
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1. OE may be tortious, but certainly not illegal unless you start getting into secondary areas, like tax or dealing with government entities or classified information.
2. Breach of contract is the most likely avenue for employers to pursue damages from your OE activities. But I use the term "damages" loosely-- they need to be actual or consequential, not punitive. There's also a potential for liquidated damages, but your employment contract would need to specify liquidated damages & they need to be reasonable. Those are questions of fact for the factfinder (jury or judge, depending on whether it's a jury trial or bench trial)...
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equal-aqua•9mo ago
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1. OE may be tortious, but certainly not illegal unless you start getting into secondary areas, like tax or dealing with government entities or classified information.
2. Breach of contract is the most likely avenue for employers to pursue damages from your OE activities. But I use the term "damages" loosely-- they need to be actual or consequential, not punitive. There's also a potential for liquidated damages, but your employment contract would need to specify liquidated damages & they need to be reasonable. Those are questions of fact for the factfinder (jury or judge, depending on whether it's a jury trial or bench trial)
3. A salaried work contract isn't necessarily "performance based" -- in every state in which I've lived, employment is "at will" and employers can terminate your employment for any or no reason at all, but if there is a reason, it can't be one of the forbidden reasons (race, ethnicity, national origin, gender, age, disability)
4. That's the best part about litigation: Discovery. If you're sued for an OE violation, you want to retain an employment lawyer licensed in your state who knows about OE. It'll cost a lot of money to defend a lawsuit like that, however, and oftentimes isn't worth it. But if you're already sued, it's in your best interest to retain experienced & knowledgeable counsel. My experience in employment litigation is limited to FL and on the employee side, but I've only tried one employment law case (disability discrimination). There are people far more knowledgeable than I am on this topic. In such cases, you will never be compared to others--performance likely wouldn't even be relevant. It likely wouldn't even be an action based in employment law, but rather contract law. They would have to prove their actual damages, i.e., the damages you caused through being OE, and the standard is preponderance of the evidence (i.e., more likely than not).