Employee Survival Guide® - Dealing with Employer Fraudulent Inducement on New Job Offers

Episode Date: November 27, 2024

Comment on the Show by Sending Mark a Text Message.Can you spot the signs of deceit in your workplace recruitment process? Join us on the Employee Survival Guide as we expose the unsettling reality of fraudulent inducement tactics some employers use to lure talent away from secure jobs. Drawing from my extensive legal experience and real-life client cases, we uncover the unlawfull practices where false promises about job roles lead to unexpected terminations, often within a year. Learn about the illegal deceptive recruitment strategies and understand the importance of building a detailed narrative to support claims of fraudulent inducement. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and welcome back to the employee survival guide where I have another challenging topic how these topics come to me is generally will be experiencing in the form of client cases and I'll start to see patterns of behavior by employers This was an example of a pattern. I see quite often this type of claim is called fraudulent inducement. I guess a legally sounding technical name, but in essence, you're being sold a bill of

goods in the recruitment stage while working for an employer, and it turns out that it's not actually what the job is. And then you get in the job and you realize all is not true. And you wish you'd never left that job to take the job. So that's, in essence, a fraudulent inducement. And I bring it to your attention because I see it quite often. I think it's in the category of really stupid employer type of behavior because it goes like this. And this comes with a lot of experience on my part in terms of sharing discussions with US, United States, federal magistrate judges in resolving cases like this during settlement

conferences. And everybody feels the same way about it. federal magistrate judges in resolving cases like this during settlement conferences, and everybody feels the same way about it. And the reason why we feel kind of this following way about these cases is as follows. Let me give you the setup. You're currently working at a job, let's say you've been there for six years. You're highly compensated or just well compensated. That really is not a factor as much. But you've been at this job for quite some time.

And you're really good at whatever you do. Just pick any job. It doesn't really matter. The same analysis applies. Then there comes a new employer who's heard about you and your experiences and your qualifications and wants to recruit you and engages you in discussions and maybe it's through a recruiter like a headhunter or something and maybe it's through interviews that you go to at the company and they make representations to you and they're really just pouring it

on and you know trying to catch get your attention to try to leave your job. So you're going to leave a job you already have, has benefits, may have all the things you're really happy there. Just think happiness. And you decide, okay, I'm getting in a better pay package at this new employer because of what they're saying to me, and I'm motivated to increase my financial situation, so I'm gonna take the job. But during this courting that they engage you with,

they knowingly make statements that are not true. But you can't discover that they're not true until after you start working there, because there's no way to see inside information in the company. And we see this type of claim happen quite often. And the reason why it's a poorly looked upon claim from the employer's standpoint, meaning that shall not, should not have done that to the employees, because you took a person

out of a job and you lied to them, basically under false pretenses. And then you fired them typically within a year because you didn't like the way it worked out. I mean, I've had cases that lasted, their employment lasted for maybe three to four months to six months, even two years. Statute of limitations on these cases, generally speaking, generally, depending on the state, is about two years to make the claim. So but the fact pattern typically is that the person's terminated within a year of their

hire. I'll take a good one that just occurred whereby the person was recruited and they were happy in their job. The new employer had a new contract with a clientele of your employer's current employer, and they want you to come over to kind of make the business run when they get this new client on board. And they do. You go work for the new employer, and four or five months later, you're let go. Or somebody puts the writing on the wall, life is made very difficult for you, you're not allowed to do any of the job duties

you were told to do. And just think of that storyline. That's a classic example where a person is misrepresented and would have never taken the job because they weren't allowed to do the job. In a recent situation, there is a current case where there's an employee who was highly recruited now, a recruiting company, he or she is highly paid, and let's say in the 300, 400, 500 range, and there's suddenly a layoff at the company.

The layoff happens, and they haven't had layoffs in you know two decades. I mean so when you do a layoff by the way the management team in the c-suite, you know, it's a big deal. It's not some small one-off event that happens when you lay off about 2 000 workers, you know, it's a big deal. So when this person in this example gets hired, recruited, they were were recruited to come in and fulfill this role that was material to the marketing department, and the person only lasted a little less than a year before they were let go in the so-called layoff. The argument there is that the company knew when they recruited and hired this person,

they were going to lay them off within the short period of time. And so they should never have hired this individual because layoffs, when you, a large layoff takes a long time in coming to plan it, because you know, 2,000 employees is in my example, just making things up to help you understand things. It takes a lot of planning on the employer's part to do that. So when the hire, offer to hire somebody in this circumstance is made, they know full well that the person's going to be let go in a year.

And you don't want to be doing that to employees to take them out of their positions that they're happy in before, even though you pay them a little bit more, still you took them out of a job, you dumped them back on the street a year later or less. That's the type of claim I'm talking about. The elements of that claim are very specific and you have to...how do you demonstrate these claims in terms of the real life circumstance? So now let's imagine you're the person who's gotten fired and you have this claim of fraudulent inducement and you want to use an attorney, an implement attorney,

to create a severance negotiation with the employer. You would have to create a detailed narrative, as you've heard me say so many times in every episode in terms of demonstrating these cases, it's the fact pattern. Always will be, and you have in this circumstance, because you're dealing with fraud, the courts have a heightened pleading standard

that has to be perfected in the fact pattern. So you have to plead in particularity about every little thing that happened. For example, number one, all the false representations that were made to you during the recruitment process by the recruiter themselves, by the interviewers, the potential new supervisors, every fact about what the jobiter themselves, by the interviewers, the potential new supervisors, every fact about what the job will be, what the compensation is,

where you'll work, any material pertinent fact a part of the job. And you have to write it all out, what was said to you in quotes, like what did they say? And you put it all in chronological working narrative for a reason, because you can see the ebb and flow of the fact pattern. And the second thing you do is you have to state whether, and by statements of allegations in the narrative,

that they were knowingly untrue when they were made, knowingly untrue by the employer. Well, how do you do that? You basically write the narrative to include all the information about the interview process, the onboarding, your acceptance, and then you talk extensively about what you were doing when you hit the ground running and what happened and what you discovered that was not true in terms of, you know, it's not what the job you were sold, because there was structural problems in the entire company that, you know, I'm making this up, but that prevented you from

doing your job. So there were known things that existed at the time the offer was made to you, that there was evidence base across the company or in the department, whatever it was, that you discovered when you landed on the ground and the company lied to you, essentially. So you go to the really detailed set of circumstances about what context and what took place. And then you have to get into this aspect of level of detail about they were knowingly made to you.

So this is the fraud. Fraud is like, it's an intense, detailed claim. It's not, it's something that's, it's premeditated. Think about like premeditation of a crime. It's thought through in advance. Like, why would people do this to people? Why would they, people are so screwed up. I have to just, just have some flexibility here and understanding. People are really screwed up in terms of the work setting, and they make these claims happen quite often, and I have to make you aware of that.

So people are really weird, and they do pretty crazy shit for the sake of profit, whatever that is. Or profit could be in the form of more increase in bonus, whatever they were doing. So you have to show the intent of the decision-makers who hired, who knowingly deceived you during the interview process, to get you to come on board, whether it's to grab your

clientele, your contacts, your expertise, maybe it's an IP issue. So you really have to show the intent through the allegations you're making about factually what took place. And then the fourth thing you have to show is that you relied upon all these representations. So of course you relied upon it. You wanted a new job, the company had a great reputation, you left this job, you know, you, you basically said your old employer, I got a new job, and you can't go back to that because they backfilled it. So now you're screwed That's why the courts and lawyers hate these claims because you're leaving somebody

He really in a selfishly Self-assert self a circumstance by the employer standpoint to screw this person over for the employers own self-gain Because all these cases really look terrible. And I can't give you specific, exact, real cases because many of them settle. And so that's why I'm talking very vaguely about them without telling you company A, B, and C, and this client, you know, by their certain names.

I can't do that. I can get into cases, but I don't bore you with those fact patterns, but I'm trying to help you understand that if you are in a circumstance where you've been let go, and this really happens to you in two phases. First, it's right when you get the new job and you start working, you're like, wait a minute, this is not the job that I asked for. I interviewed for what they told me, something completely different.

Maybe there's some internal fiefdom happening and who knows, but, or you discover it later down the road after you've been fired and talked to an employment attorney and realized, hey, that's a fact pattern that kind of supports fraudulent inducement, which happens more often than not. That's how you discover it.

And you use the claim to benefit yourself for purposes of severance negotiation, as always. It's just a leverage point. What this claim is not is something that I need to make you aware of something as well. Certain jurisdictions have, you know, every, like, let's say, for example, New York and Connecticut. Connecticut has a better case law basis for fraudulent misrepresentation as opposed to fraudulent inducement. They kind of sound the same, but they're different. Fraudulent misrepresentation is basically a promise of some sorts. And that distinguishment is,

or that type of claim is different when you go to New York. And in New York, it's, you're not well-employed and the promises of the future are not necessarily gonna work, and that's why you have to resort to a fraudulent inducement type of theory of claim. Sounds similar, but in fact, legally they're different. So fraudulent misrepresentation is really about making promises, material promises

that were knowingly not true, kind of like contractual promises about the job. And in New York, they don't favor that type of claim, and then you have to resort to fraudulent inducement in New York to make it work for you. And it does. Same fact pattern. So I wanted to bring this claim to your attention because it happens a lot. I currently have anywhere from four to five cases at a time where this is actually taking place and making you aware that there's actually something you can do about it to resolve the matter in your favor,

use the claim as leverage to support a severance negotiation to recoup whatever it is of compensation. Because if you're let go after this episode of misrepresentation, four months, six months, or a year later, you're out on the street, you need income to land or to help you until you land a next job. So, the claim can help you support a severance negotiation

and the mechanical parts essentially are the written narrative, the next is get an employment lawyer because they're gonna help you shepherd that thing in front of an employer and their counsel and create the correct narrative to make it persuasive. And then thirdly, negotiate the severance package even after you left. Even if the employer didn't give you a severance package, you can create a severance negotiation, aka settlement discussion, to resolve the claim. Or worst is that you'll end up filing lawsuit against them and does the employer want that? That's a threat.

You have to hit the employer over the head with a very large sledgehammer to make them understand that you will file a lawsuit if this doesn't work in your favor. You're not demanding that they just pay X sum. You're inviting them to have an adult professional discussion and negotiation to reach a compromise. They're not going to like the results. You're not going to like the result either, by the way. You're not going to get exactly what you want.

So I just want to dispel this attitude that you're entitled to some form of justice or amount of money. It's like, get real. It doesn't work like that. You have to engage in a professional way. Each side is entitled to disagree. And that's negotiation. And get used to it because that's what it's like.

And what you should do is get rid of your emotions. I know you're pissed, but this is a setback in your career and your resume, whatever it is, but it's still a negotiation. You need to act like a professional, like an adult, use professionals, employment attorneys to help you negotiate this and you'd be surprised about the result. We're not talking small dollars here. We're talking real money that could be had privately without the use of going to court. That's just a definition of success in my opinion. So again, fraudulent inducement happens a lot. You can see the fact pattern now.

You know what it looks like and you deal with it. And if you get wind of this, start documenting things for yourself and try to demonstrate that in fact, things are not what they claim to be, and you may have some type of insurance policy in the event that they wanna toss you out. And maybe they don't wanna pay you the severance that they allegedly had promised you, or the bonus.

You can recoup bonuses in this way through negotiations using claims, even though bonuses are so-called discretionary. So again, another tactic, another type of claim that I see quite often I want to bring to your attention. I hope that helps you. And it was just something in my mind that I wanted to share with you for quite some time. So there you go. Have a great week. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely,

that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up I'll keep the information flowing at you If you'd like to send me an email and ask me a question, I'll actually review it and post it on there you can send it to m car you y at

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