When you’re interviewing applicants, it can be tempting to paint an overly rosy picture of the job to snare a good candidate. But be careful. If what you say isn’t accurate, you could wind up on the wrong side of an expensive fraud lawsuit. We’ll tell you about one employer who recently had this problem and give you some strategies for avoiding similar pitfalls.
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High-Level Duties Touted
Debra Blackhart claimed that when she interviewed with Siemens Business Communications, Inc. in Santa Clara, she was told she would be employed as a senior program manager with significant marketing responsibilities for an important new project. Also, her interviewers allegedly said she would spend only 20% of her time traveling.
Job Not What Expected
When Blackhart started working for Siemens, she found her position as project manager had no marketing responsibilities. And, Blackhart later contended, she had to travel up to 80% of the time. After only three months on the job, she quit.
Blackhart then sued Siemens for fraud, accusing it of misrepresenting her job duties and travel obligations. Siemens’ attorney told CEA that her job was consistent with what was stated to her during the hiring process.
Jury Finds Hiring Fraud
A jury found Siemens had in fact misrepresented the job duties to Blackhart and awarded her $20,000. But, it rejected her claim that she had to travel more than she had been led to believe.
Lawsuit Risks
Although the verdict against Siemens was relatively modest, the damages in a fraud lawsuit could be much more expensive if the candidate gave up a good job and has trouble finding a new position after leaving your company.
Employees who prove you misrepresented important facts about a job may be entitled to big damages-not only back pay, but also compensation for emotional distress and punitive damages. Plus, as Siemens no doubt learned, you’ll also have to shell out significant amounts for attorneys’ fees to defend yourself.
There’s also another major risk. Under the California Labor Code, if you misrepresent the length of employment, type of work, compensation or other aspects of the job and the person relocates to take the position, you could be hit with double damages plus fines of up to $1,000 and six months in jail.
Self-Defense Tips
Here are some ways to prevent problems in this area:
- Be straightforward. When communicating with applicants in interviews, over the phone or in writing, be honest about what the job entails. If you inflate expectations beyond what a candidate is likely to experience, you could be setting yourself up for problems. Also make sure any written materials you give applicants are completely accurate.
- Document communications. To avoid disputes about what was said, take detailed notes of interviews and conversations you have with prospective employees. Put all job offers in writing, completely describe the job duties, salary and benefits (reserving the right to change any or all of them), and have the employee sign the document.
- Maintain accurate job descriptions. It’s a good idea to refer to a job description when discussing the position. If problems come up later, this will make it easier for you to show exactly what you said. Also, make sure the description clearly states that all job duties, responsibilities, travel, work location, hours of work, etc. are subject to change.
- Consider severance. You might want to agree in advance to a severance package and release of liability if things don’t work out early in the relationship, particularly if a candidate leaves a lucrative job to work for you. And emphasize that employment is at-will and can be terminated by either party without notice, at any time and for any reason.