Your Job Isn't What The Employer Promised: Is That Illegal?

hired job title changeI recently received this question from a reader.

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.

More: 8 Ways Employers Can Discrimination Against Workers -- Legally

Sadly, because every state except Montana is an at-will state, they can 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.

More: Can You Be Fired For Calling In Sick - Even With A Doctor's Note?

How To Prevent This From Happening To You
1. 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.

Lunchtime Live: Ask Donna Ballman - Reasonable Accommodation


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Donna Ballman

Donna Ballman

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Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. 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 representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

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39 Comments

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Angela J Shirley

Well it may be illegal for them, but who wants to end up with no job. Not me. So I would go ahead and work with them while I looked for another job if the change is not working for me. With the job vacancies - job hunters ratio not being the best, everyone needs to weigh the consequences of fighting against a decision our employer made. Not everyone is able to be without a job. An interesting topic and one that has been going on for years, but now more so with companies knowing they have the upper hand in the recession. http://rockportinstitute.com/

December 12 2013 at 5:00 PM Report abuse rate up rate down Reply
tammyl.kilgore

I'm having almost the same issue. I have a 1 year contract but the duties are on another page. From the first day I arrived here, the person who was going to move to another position, decides that she doesn't want to, so she started lying about me, and now I am stuck doing almost nothing. I left a job after being there for 8 1/2 years, thinking this was a good opportunity and now I feel stuck. Corp wants me in that seat but the GM wants her (he feels sorry for her) and it's started a war between them and I'm in the middle and not sure what to do. In a way, I feel like they ruined my life.

October 14 2013 at 1:45 PM Report abuse rate up rate down Reply
bfg305

The correct answer rally depends on where you live and whether any Federally protected rights were violated- such as age, sex race, religious discrimination etc. Many states have right to work laws such as Florida and they can hire or fire at will fo rany reason other than a State or Federally protected one. Obviously a valid employment contract can create enforcible rights too. Smart employers who are intent on doing what is described in the article won't put anything in writing. Fraud is a possibility - but it is tuypiucally hard to prove without some documents or other evidence. I would urge people to remeber if your employer is being truthful then they wil put things in writing- when they refuse- it is a sign to take extreme caution.

April 17 2013 at 10:29 PM Report abuse rate up rate down Reply
Greg Hannah

I think that a case might be made for damages despite at will law. It could be argued that even if the company that the person first worked for fired them that their time there would have entitled them to severance. Since the person left voluntarily to join the new company they should be able to argue that their time with the company does not represent a significant enough effort on the part of the company to retain them and that they should be compensated at least as well as if they were still at their previous company.

April 17 2013 at 5:46 PM Report abuse rate up rate down Reply
ga7smi

wotk to rule

April 17 2013 at 5:36 PM Report abuse rate up rate down Reply
1 reply to ga7smi's comment
ga7smi

I meant work to rule

April 17 2013 at 5:36 PM Report abuse rate up rate down Reply
Albert Vargas

Here's a way to avoid all of the hassle of getting employed: Go into business for yourself!

April 17 2013 at 5:10 PM Report abuse rate up rate down Reply
wjhonson

The idea that an employer can fire you for "any reason" is completely false. That you are promoting this as an "Expert" in this area is quite shocking. Can an employer fire you for being black? No Can they fire you for being married? No. Can they fire you for having children? No. And that's all states. Every one of them. Why do you promote these kind of lies?

April 17 2013 at 1:32 PM Report abuse +1 rate up rate down Reply
4 replies to wjhonson's comment
ddiribbons

Unions did some good years ago, but now they are horrible. I recently worked a convention where I set up a booth. I needed a short extension cord for a light. I asked one of the convention workers if he would get one for me, and he said he was not allowed to do it that a union worker had to do it. The union worker came to my booth with a short extension cord, bent down, and plugged it in to the floor outlet and left. No telling what all that hard work cost.

April 17 2013 at 12:14 PM Report abuse -4 rate up rate down Reply
Iselin007

And there is a good chance AOL's Bill Case's ancestors were the same Case Families that married in to my family that is why some of my family members are buried in the Case family cemetery! That is a good reason why AOL should give me free AOL with my Dial Up connection ( Case Closed) :)

April 17 2013 at 12:06 PM Report abuse +2 rate up rate down Reply
Iselin007

I just want say my family's ancestors came here settling the Massachusetts Bay Colony/Rowely, New Haven Colony, and Wethersfield Connecticut after coming with Ezekiel Rodgers in the Ship John from London England.
My Greatist Uncle Richard W is listed on the Land Parcel map right next to Constance Crosby lot.in Rowely MA. My Greatist Uncle Cornit Thomas W is buried in WeathersfieldCT in the Old Burial Ground. My Great Uncle Captain Thomas W spoke with and communicated with General George Washington during the Revolutionary War having been Captain of the Sloop Hampton Packet with 8 Canon and 30 men. Great Uncle Captain Daniel W was a lawyer in the Ipswich court.

April 17 2013 at 11:48 AM Report abuse +3 rate up rate down Reply
1 reply to Iselin007's comment
jaxkiang

can they help with this workplace dilemma?

April 17 2013 at 1:51 PM Report abuse +2 rate up rate down Reply

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