Speaker 1: 0:20

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 we'll 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 it's 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 a 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, and the reason why we feel kind of this following way about these cases is as follows.

Speaker 1: 1:54

Let me give you the setup. You're currently working in 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 Doesn't really matter. The same analysis applies. And 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 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 you know I'm motivated to increase my financial situation, so I'm going to take the job.

Speaker 1: 3:08

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 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 to 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 fire 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.

Speaker 1: 5:01

In a recent situation there was a case, or 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 you know, in the 300, 400, 500 range, and there's suddenly a layoff at the company and the layoff happens and they hadn't had layoffs in two decades. So when you do a layoff by the way the management team in the C-suite it's a big deal. It's not some small one-off event that happens. When you lay off about 2,000 workers, it's a big deal. So when this person in this example gets hired, recruited they 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 you know when you a large layoff takes a long time in coming to plan it, because you know 2,000 employees, as 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 offer to hire somebody in this circumstance is made, they know full well that the person is 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.

Speaker 1: 6:43

Okay, 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 make use an attorney, implement an attorney to create a severance negotiation with the employer.

Speaker 1: 7:09

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 you know every little thing that happened. You have to plead in particularity about you know 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 job will be, what the compensation is, where you'll work, any material pertinent fact apart 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.

Speaker 1: 8:07

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 based 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 very detailed set of circumstances about what context and what took place, very 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.

Speaker 1: 9:20

So this is the fraud. Fraud is like it's an intense, detailed claim. It's not. It's something that'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 have some flexibility here in 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 you know profit, whatever that is, or you know profit could be in the form of more increase in bonus if they you know whatever they were doing. So you have to show the intent of the decision makers who hired, who knowingly deceived you when 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.

Speaker 1: 10:29

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 basically said to 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.

Speaker 1: 10:49

Courts and lawyers hate these claims because you're leaving somebody really in a selfish circumstance by the employer standpoint to screw this person over for the employer's 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 it really happens to you in two phases First, it's right when you get the 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? Or you discover it later down the road, after you've been fired, and talk to an employment attorney and realize, 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.

Speaker 1: 12:24

Let's say, for example, New York and Connecticut. Connecticut has a better case law, you know, 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 type of claim is different when you go to New York type of claim is different when you go to New York. In New York it's you know, you're an outwell employee and you know the promises of the future are not necessarily, you know, going to 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 normally 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.

Speaker 1: 13:29

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 take to help you until you land the next job. So the claim can help you support a severance negotiation.

Speaker 1: 14:18

And the mechanical parts essentially are the written narrative. The next is get an employment lawyer, because they're going to 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 you know, worst is that you'll end up filing lawsuit against them and does the employer want that? That's the threat you know. You know worst is that you'll end up filing a lawsuit against them and does the employer want that? That's the threat you know.

Speaker 1: 14:52

You have to hit the employer over the head with a very large sledgehammer to make them understand that you will, you know, file a lawsuit if this doesn't work in your favor. You're not, you know, demanding that they just pay X sum. You're inviting them to have an adult, professional discussion, a 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.

Speaker 1: 15:19

So I just want to put a 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, in 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.

Speaker 1: 16:02

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 the 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 want to toss you out and, you know, maybe they don't want to pay you the severance that they allegedly had promised you or the bonus. You know 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.