Your Job Isn't What The Employer Promised: Is That Illegal?
Q: I was hired for a specific job with a specific job title. Months later, my employer changed my title without asking me and made me work in a role that I neither wanted nor was qualified for. I wouldn't have left my prior job for the newly changed job title. Then my new position was eliminated because it wasn't working for the company. So now I'm out of a job! What are my options? Is this legal? If they'd offered me this position in the first place I never would have accepted it!
A: I'm so glad you asked. I have seen way too many people uproot themselves and their families to take jobs that turned out to be temporary, lower level or -- even worse, nonexistent. Imagine the horror of giving up your job, even moving, only to find out that the position you thought you had wasn't budgeted, or the company decided not to fill it after all. That happens all the time. Hopefully you didn't have to move for this job, but it's still awful to give up a job for one that didn't turn out to be what was promised.
Accepting a job that turns out to be a lower than you were told isn't unusual at all. You were lured to the new company based on promises they made, only to find out they had no intention of keeping those promises. But you could have legal claims of fraud, breach of contract or even discrimination.
fire you for any reason or no reason at all. But here are some claims you should talk to an employment lawyer in your state about:
Fraud: If the company made representations they had no intention of honoring, or failed to disclose key information they knew, then you may have a fraud claim against them. If they knew the company finances were shaky or that the job was temporary, they misrepresented the position to you. You lost your old job for this one, after all. Of course, the difficulty will be proving damages. Because both jobs were at-will, they will argue you could have lost your old job at any time. If you had all good reviews, no disciplines, and especially if they recruited you from your old position, you may have a decent shot at proving fraud. They will claim they had no idea things had changed until after they hired you, and that may depend on how long they kept you in the original position. If it was a few weeks, then they will have a difficult time, but if it was, say, 9 months, then things may well have changed unexpectedly after they hired you.
Breach of contract: Even if you didn't have a written contract (anything in writing, even emails, may end up being a contract), if they made an offer that you accepted, what they offered is a contract. If they never put you in the position and salary offered, they may be in breach. If they promised to give you a certain amount of time to prove yourself, and they moved you before that time was up, they may also have breached their verbal or written contract with you.
Discrimination: If you had an offer for one job, then they saw you for the first time or discovered after hiring you that you are of a different race, age, religion or national origin than they expected, you are disabled or pregnant, or some other protected category, and that's when they decided to put you in the lower-level job and eliminate the higher position, you might have a discrimination claim.
Noncompete void: If you signed a noncompete agreement saying you can't work for a competitor for a year or two, then their misrepresentations to you could be considered fraud in the inducement, unclean hands or bad faith that may help you convince a judge (or this employer) that you should be released from your noncompete obligations. It's good leverage if you decide to leave and want to negotiate a release or reduction of your noncompete agreement.
How To Prevent This From Happening To You1. Get a job offer in writing. My best advice is to get that written job offer, stating a minimum period that you'll be given to prove yourself. If a company wants you to move or leave a good job, it isn't unreasonable to have them promise in writing to give you 90 days, six months, or even a year guaranteed. I'd also warn about signing an agreement saying that you'll pay back moving expenses if you don't stay employed for a specific time period. Many unscrupulous employers will fire new hires the week before the deadline so that they can force the employee to pay back moving expenses.
2. If a company won't put their promises in writing, think twice, and then think a third time. At the very least, if they won't do a contract, send an email. Say something like, "This will confirm our conversation where you stated that [insert whatever they promised here]. I am relying on this representation in accepting the position of [job title] in [city]. If this is incorrect, please notify me immediately." If you're resigning a position based on a verbal representation, you should add, "I will be putting in my notice to leave my current position on [insert date] unless you advise me before then that this information is incorrect. Otherwise, I look forward to starting work with you on [insert start date.]" You get the idea. The more you can get in writing, the more you can protect your family and yourself.
3. Check out the company's financial condition before you jump. You need to do your due diligence before you jump. Ask about employee turnover, especially your predecessors in that position. If they assure you they're in good financial health and that the position is secure, confirm it in writing. That way you can prove they misrepresented the position to you if it turns out to be different after you start.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat on AOL Jobs' Lunchtime Live.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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