Wait We Never Said That, Employer Misrepresentations
It’s day one of the new job and upon arrival you suddenly realize you may have the wrong address or the wrong employer. Everything the new employer represented to you during the interview is either false or a half truth. Your new employer has lied to you about your new position, salary, responsibilities, location or some other material aspect of the job that lured you into accepting the job offer. But wait, you just notified your former employer that you quit and they already hired someone else to replace you. What are you going to do?
Employers misrepresent information about potential job offers all the time. The purpose of the misrepresentation is to lure employees in the door who would not ordinarily accept employment if they knew the real deal going on at work. For example, a common situation we see is where the employer represents the job duties to the candidate but once hired she discoverers she will actually be performing a different role altogether. In another example, the employee is hired for the job she applied for, but discoverers the employer’s financial situation is not great and the employee struggles in the new position due to lack of resources. In a different example, the employer states it does not require employees to sign noncompetition agreements. However, on the first day the employer tells you the job is contingent on signing a noncompete agreement. You sign because you have no choice, but a year later when you leave, the employer reminds you of the noncompetition agreement. You are upset because you are told you cannot work in your chosen career all because the employer lied to you and is now threatening you with a nasty cease and desist letter from the company attorney.
The problem employees experience is what to do about the misrepresentation when they discover it. You can quit your job and find a more reliable employer. Prior to accepting employment, you should investigate your employer by searching for legal cases on the internet filed against the company for fraudulent or negligent misrepresentation. If you find a case arising from the same company office you are applying to, you can ask the potential employer about similar issues in your job offer and see if they have cured the previous representational errors, without ever bringing up the legal cases you found.
You can also go to glassdoor.com for colorful comments about the company, but remember, information contained on that site is full of mine fields. Be conservative, use the information you find to help you make an educated decision whether or not to accept the new position. Normally, employees discover misrepresentation claims after they have been terminated and only after they speak with an employment attorney, typically as part of a severance negotiation.
Aside from quitting, the only real way to confront the employer is by using an attorney to assert claims of fraudulent and negligent misrepresentation either through a confidential settlement negotiation or the filing of a lawsuit.
There are two forms of misrepresentation claims. Fraudulent misrepresentation arises where the employer intentionally omits information or discloses information it knows is not true. In this claim, you need to prove the employer made a knowingly false representation of fact and the representation was made to induce you to act on the information and you did to your detriment. Negligent misrepresentation is similar, but here you need to prove the employer knew or should have known that what it represented to you was in fact false but said nothing about it to your detriment. Courts around the country apply the same basic law regarding both of these claims.
If you decide you want to engage a lawyer and confront the misbehaving employer, you will need to get your facts straight. You should write out your facts in a chronological narrative. Your attorney will notify the employer and attempt to resolve the case without litigation. We advise our clients to use litigation only as a last resort. Many employers will also want to settle these claims primarily to avoid bad press and increased future risks caused by litigation.
If you need more information about this subject, please contact Mark Carey at firstname.lastname@example.org or 203-255-4150.