F. Job Misrepresentation

Job misrepresentation typically occurs before the offer is made. Statements and comments are made to female applicants concerning job security, promised benefits, and exemplary working conditions that never materialize. For example, to induce a female job candidate to leave her current company, she is told, "We offer flexible hours and child care assistance." Impressed by such a statement, the candidate resigns from her position and accepts employment, only to later learn that no assistance is available.

Promising benefits or earnings that never materialize can cause an employer to be liable under various legal causes of action. If the person making a statement of fact knew the comment was false when made, and the applicant relies on such a statement to her detriment (such as resigning a lucrative position and relocating to the new employer in a different state), the employer may be held accountable for damages under theories of fraud, fraud in the inducement, misrepresentation, and negligent misrepresentation. A legal trend called truth-in-hiring is emerging in some states that holds employers accountable for promises made at the interview. Additionally, some employees are suing employers for breach of contract and breach of an implied contract when promises are made concerning job security that are never kept. For example, if a statement is made such as "We never fire anyone around here except for cause," but you are terminated suddenly for no reason, you may have a valid breach of contract claim.

When applicants are exposed to exaggerated earning claims (such as, "If you come to work for us you will make $75,000 in commissions this year, based on what our other salespeople make.") that are untrue, the Federal Trade Commission considers such statements to be an unfair and deceptive trade practice when promises of earnings exceed the average net earnings of other employees or sales reps at the company.

Tip:Be on the alert when a potential employer makes claims regarding guaranteed earnings, job security, or conditions of employment. Ask the employer to put all claims in writing for your protection. Talk to other employees who currently work there to see if the company delivers on its promises. Document all promises and write down the date, time, location, and names of all witnesses who overheard such statements. This may help your lawyer if you are asserting a lawsuit to enforce such promises.

With respect to guaranteed earning claims, ask to see the wage statements (for example, W-2s or 1099s) of other people at the company to confirm such claims. If the employer tells you such information is confidential, suggest that the names of the employees be concealed. If the employer refuses to do this or cannot provide factual information to support such claims, think twice before accepting the job.

Smart applicants thoroughly investigate potential employers before accepting employment. By learning facts about the employer's business reputation, credit rating, financial standing, rate of employee turnover, morale problems with workers, and whether the company has recently been involved in any employee-related lawsuits, you may be able to detect whether you will be working for a dishonest employer who doesn't care much about its workforce. Information on how to investigate employers is discussed in Chapter Three, Getting Hired.