Reprinted from the December 15, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Hiring Hook, Line, And Legal Stinker

In order to reel in a top candidate, you have to use whatever bait you can to get him/her to bite at your job offer. But you can’t use just any bait that looks good. Monetary enticements dangled in front of the candidate must be based on the job’s reality.

THE HOOK
“This job is very similar to what I’m currently doing,” Artie Gendrew remarked. “So I know I can do a bang-up job for you.” He was about an hour into a job interview with manager Will Filitti.

“Yes,” agreed Filitti. “Your background is exactly what we’re looking for as a supervisor in this department.

“You’ve been in this industry for many years,” Filitti continued, “and a supervisor for quite a few. So tell me, why do you want to switch companies to perform approximately the same job?”

“Honestly, I’m looking for greener pastures,” Gendrew said with a slight wink. “The potential salary plus draw and commission here are more motivating than my current company. I know I can hit all the goals you laid out earlier.”

“I think you’ll find greener pastures here,” the manager smiled.

THE LINE
“I earn about $5,700 a month now, and I would need to earn at least that much here,” admitted Gendrew.

Filitti opened a desk drawer, pulled out a financial statement, and punched numbers into a calculator. “If you had been working here in the first nine months of the year, you could have earned $70,000.”

That sealed the deal for Gendrew. When Filitti offered him the job, he accepted. Gendrew hoped to finish his career with this new company. When he resigned his current job, his manager said he was sorry to see him leave.

THE LEGAL STINKER
Soon, Gendrew was sorry that he had left. For the first four months, he made less than $5,000 per month.

“Will, what’s going on?” Gendrew repeatedly asked.

Filitti danced around the questions, telling him to bring in pay stubs to prove his previous salary. Even after Gendrew did, the manager failed to make any changes to his compensation.

After the fifth short month, Gendrew went back to Filitti. “I don’t care about making $70,000 in nine months, but I need to earn at least what I was making at my old job,” he pleaded.

Two days later, Filitti let him go. Gendrew couldn’t go back to his old job due to its strict no-rehire policy. He found another job, but it paid even less than what he had made under Filitti, and his brand new colleagues continually asked about his termination.

After much physical and emotional turmoil, Gendrew sued, claiming promissory fraud and emotional distress. Court award: over $1 million.

FISHING FOR TROUBLE
Prevent your hiring enticements from turning into employees’ legal entitlements. Give factual figures, and never exaggerate in an attempt to win over an applicant.

It turned out that no supervisor in Gendrew’s position had ever achieved the amount that Filitti promised in a full year, and Filitti knew that. Filitti’s words were neither vague nor simply an opinion; pulling out the calculator and financial statement turned them into a representation of fact, especially considering his direct knowledge of the position’s earnings. Therefore, Gendrew’s reliance on Filitti’s figures was grounds for a fraud charge.

A large part of the award was future lost wages, based on the employee’s previous job salary. Gendrew’s former boss was sad to see him leave and did not take him back only because of company policy; thus, if the employee had not left due to Filitti’s false salary promise, he would have remained at his former salary.

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