Fake Job Offers, Phony Jobs and Employer Fraud

This question from Ask A Manager really struck a nerve for me:

Hi. I recently accepted a job offer via e-mail, handed in my notice with my current employers, a new e-mail then arrived stating my contract was being drawn up, then a few days later I receive a phone call retracting their job offer, what are my rights??? Please help.

You’d be surprised how often this happens. The mistake I see is that you gave notice before you got a signed contract. You shouldn’t give up your job unless your new offer is 100% final. That means contract signed if there is one, background check passed, and any contingencies have occurred.

It’s not unusual that people are duped into giving notice at their job, only to have the offer pulled or find out the job is nonexistent. Or maybe you’ve been lured into a job with promises of higher pay, better title, specific hours or location, and it turns out that the representations made to lure you in weren’t true. When this happens, you might have a case for fraud.

In order to claim fraud, the statement(s) must been false, and the company had to know they were false or be recklessly indifferent as to their truth or falsity. You must have relied on the false statements and changed your position. The company will probably claim that the person who made the representations believed them to be true at the time. Cases like this can require massive discovery, time and expense.

Another theory you might have to pursue against these unscrupulous employers is tortious interference with your employment relationship. I haven’t seen any cases attempting this type of claim, but it might be viable in your state. Basically, the theory would be that the phony employer interfered with your employment, knowing that you would lose your job, and that they were reckless or negligent in their behavior.

I’d be interested in hearing from other lawyers who have brought or defended this type of case to see what happened.

The sad truth is that, with at-will employment, you could work one day and they could decide you were a “poor performer” or “didn’t fit in.” Mostly, switching jobs is a high-risk activity. Be careful out there. Do your due diligence on the new employer. See if they make a habit of this type of behavior. Try to find out what kind of turnover they have. Speak to current or former employees if you can.

In my view, doing this to someone should be a crime. In this anti-employee environment, I suspect it won’t happen. Still, anyone who convinces someone to leave their job in this economy with pie in the sky promises that turn out to be phony deserves to spend some time behind bars.

Donna’s tips:

a.       Get that job offer in writing. Make sure you have everything you think is essential in it. If the recruiter told you that you’d only work Monday to Thursday and you need Fridays off for a class, either make sure they put it in writing or write them a letter or email confirming the information.

b.      If the job offer is contingent, don’t give notice unless all the contingencies have been met. If you have to pass a background check, wait until they tell you that you’ve passed, then confirm that information in writing. Tell them you’re relying on that information and will be giving notice at your current job. If you get a conditional offer and you need to discuss disability accommodations, get the accommodations agreed to before you quit your job.

c.       Don’t move your house without getting some guarantees that the job will last for a minimum period of time. It’s best to have a contract saying you can only be fired for cause if you’re uprooting your family.

Does Discrimination Still Exist? Of Course It Does

This piece by David Sirota in Salon struck a nerve with me. He makes the case that race discrimination still exists. Sad, but it's something that needs to be said over and over. I find the issue of whether any kind of discrimination still exists to be a continuing uphill battle when I represent employees in discrimination cases.

Truth be told, when I started handling employment discrimination matters 25 years ago, I figured I'd do it for a few years, then everyone would know the law and I'd have to find something else to do. Here I am, still handling discrimination cases. Instead of seeing them wane, I find that in some ways discrimination has gotten more blatant over the years.

Discrimination Exists

If you don't believe that discrimination exists, here are some facts that prove my point. Read more in The Huffington Post.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

I'm Nominated to Lexis Nexis Top 25 Blogs!

Wow! Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry.  Screw You Guys, I'm Going Home is one of the nominated candidates for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011, featured on the Labor and Employment Law Community.

I'm incredibly honored to be included with such a great bunch of nominees. Lexis Nexis is inviting Labor and Employment law practitioners to comment on the list of nominees. If you’d like to support my nomination, please comment on the announcement post on the Lexis Nexis Labor and Employment Law Community.  You may click on the badge on the upper right hand of my blog and it will take you right there.

Each comment is counted as a vote toward the supported blog. To submit a comment, you need to log on to your free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. The comment box is at the very bottom of the  blog nomination page. The comment period for nominations ends on September 12, 2011.  Lexis Nexis will then post the Top 25 Labor and Employment Law Blogs of 2011. Thereafter, the Lexis Nexis community will vote to choose the Top Blog through a Zoomerang survey. The final announcement will be made around the end of September. 

I'd sure appreciate your support. Good luck to all my fellow nominees!

My Company Is Involved In Illegal Activities. Can I Sue?

If you observe your employer engaging in certain illegal activities, you might be a protected whistleblower if you object to, refuse to participate in, or report the activities. In most cases, reporting illegal activities by fellow employees or supervisors against the company, like embezzlement or theft, won’t be protected. I won’t attempt to make an exhaustive list of every whistleblower statute, but almost all states have some. As a few examples, you’ll be protected if you report the following.

            Discrimination: if you report discrimination based on race, age, sex, religion, national origin, disability, genetic information, pregnancy, or color to HR, your supervisor, or EEOC.

            Safety violations: complaining to OSHA, seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

            Pollution: reporting pollution under various anti-pollution acts, or participating in or testifying in pollution investigations/proceedings.

            Securities fraud/shareholder fraud: providing information or participating in an investigation with the Securities Exchange Commission.

            Donna’s tips:

a.       Be careful if you’re reporting a coworker or boss ripping off the company, because you’re probably not a whistleblower. You can be fired if the company doesn’t like what you have to say. I’ve even seen employees accused of not reporting this type of behavior quickly enough.

b.      If you think something illegal is happening, look up the laws that apply and make sure you’re going to be protected before you report it.

c.       Sometimes to be protected you have to report the illegal activity to a government agency. Make sure you report it correctly so you’re covered.

If The Office Is Closed Due To A Hurricane, Am I Entitled To Be Paid?

With Hurricane Irene bearing down on the East Coast, I thought it would be important to address what the employer's obligations are if they close the office due to a natural disaster. Whether an employee is entitled to be paid when the office is closed depends on whether they are "exempt" salaried or not.

If an employee is salaried, it doesn't necessarily mean they are "exempt" from the requirements of the Fair Labor Standards Act. A federal regulation deals with this and other types of missed work for salaried exempt workers. Read more on AOL Jobs.




Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Employment Law Blog Carnival: Kindergarten Edition

The latest Employment Law Blog Carnival came out, hosted by the Ohio Employer's Law Blog. The theme? All I Really Need To Know About Employment Law I Learned in Kindergarten. Check out the latest and greatest blog posts by employment lawyers and HR people around the country. I'm there, as are many of my favorite blogs.

I Was Treated Differently From My Coworkers. Can I Sue For Discrimination?

            Most suits for non-harassment discrimination fall within the category of “disparate treatment.”  This means that you were treated differently than similarly situated employees under the same circumstances. You will have to prove:

            1.         You were in a protected category. These categories are race, age, sex, religion, national origin, pregnancy, color (meaning shade), genetic information and disability. Some states have other categories, such as marital status or sexual orientation.

            2.         You were treated differently than someone else in a different category under the same circumstances, or you were turned down for a position or promotion you were qualified for and it was given to a less qualified person.

            3.         You complied with the administrative requirements of filing with the correct agency.

            Your employer will have to come up with a so-called “legitimate reason” for the action they took. This doesn’t have to be a good reason, just one that might be motivated by something other than discrimination.

            Then, you’ll have to prove that the “legitimate reason” was really pretextual, and the real reason was discrimination. In the case of age discrimination, you’ll have to prove it was the only reason.

Donna’s tips:

a.       If your company is starting to document discipline on you, then keep good records of why their accusations aren’t correct.

b.      If you’re keeping notes, records or other documentation of discrimination, keep it in your purse or your pocket and take it home. Don’t leave it in a desk drawer. If you are fired, the company will keep it.

c.       Don’t assume your friends and coworkers will tell the truth. Most people will lie to save their jobs. Rely on your own documentation as much as possible.