Resumé Fraud and the Law
15 Oct 2014
When faced with the prospect of a new and exciting job, the temptation to “sell” oneself beyond one’s true worth may be irresistible.
It is not uncommon to embellish one’s credentials in the course of an interview or through a resume in order to “get one’s foot in the door.” To a certain degree, most people are guilty of some form of self-aggrandizement when employment is within reach.
However, in addition to the obvious ethical drawbacks associated with misstatements of reality, lying on one’s resume or obtaining a job through actual fraud or misrepresentation may have serious legal consequences.
On the other hand, the law views misinformation in the context of employment on a continuum — from benign misstatements to the most disreputable and deleterious forms of deceit. Depending on where an individual finds himself or herself on that continuum, employment could not only be terminated for cause and without reasonable notice or pay in lieu thereof, but legal action from the employer becomes a reality if the misrepresentation actually causes harm.
As a matter of course, employees in Ontario and throughout Canada are regarded as vulnerable entities in the eyes of the law. Traditionally (though not always), employees have had little to no bargaining power when applying for a job.
Things have not changed tremendously: in most cases, the employer will present the employee with an employment agreement which the employee will feel obliged to sign, usually without the benefit of legal advice.
However, one thing an employer normally does not have immediate and palpable control over (subject to a diligent verification of references) is knowledge of the employee’s professional and, more commonly, personal past.
In those instances, the employer has to rely on the employee’s word. Trust, therefore, is very much a requirement of the employment contract, and an employer has the right to expect honesty and integrity from present and future employees.
To understand the implications of deceitful conduct in the context of an employment relationship, it is important to know that at common law, an employee is not entitled to his or her job and, as such, dismissal can happen any day. However, an employer wishing to terminate an employee has to provide reasonable notice that a termination is approaching.
In addition to the notice formula set out in Ontario’s Employment Standards Act and in the absence of an agreement to the contrary, the to-be dismissed employee could be entitled to receive further common law notice that his or her employment will come to an end on a certain future date.
The length of such notice depends, among other things, on the employee’s age, character of employment, length of service and prospects of finding new work. If the employer decides to dismiss the employee without notice then, subject to the employee’s obligation to find alternative employment, the employer would have to pay money in lieu of such notice.
However, an employer could legally avoid the obligation to provide notice of termination if there is just cause to fire the employee. Insubordination, incompetence, insolence and breach of trust are just some examples of conduct that can constitute grounds for dismissal.
If the employee materially misrepresents various facts when being hired and if such misrepresentations go to the very root of their employment relationship with the employer, such distortions could amount to a just cause and disentitle the dismissed employee of notice or compensation.
For instance, an employee lying on an application that he or she has a valid driver’s license would amount to cause if carriage of a license is intrinsic to the job requirement. Misrepresenting one’s education level and qualifications could also amount to cause. Likewise, representing that an employee was employed with another employer (when this, in fact, was not the case) when applying for a job with the current employer could constitute cause for termination.
Further, if an employer suffers as a result of an employee’s misrepresentation — for instance, if the employer incurs expenses due to the employee’s hiring or is exposed to liability to third parties — the employer can successfully sue the deceitful employee to recover their losses. Admittedly, the law is not without subtlety and, as such, not all acts of dishonesty will expose an employee to liability or even amount to cause. When misstatement is at issue, the law takes a contextual approach before reacting. Thus, for instance, mere innuendo, puffery or exaggeration would normally not amount to cause so as to deprive the terminated employee of notice or compensation, especially if an employer was not lured into hiring an employee because of such misstatements.
By way of an example, where an applicant — even though an introvert — decides to state on their resume that they are a “people’s person,” and the job requires little interaction with others, he or she is unlikely to be the subject of a successful dismissal with cause. If an employee misstates his or her previous employment location (for instance, Vancouver as opposed to Toronto), depending on the circumstances, this too would unlikely amount to termination with cause.
Although all cases are inherently fact-driven, one thing is clear: the law will not allow an employee to benefit from his or her wrongdoing. Lying to an employer is bad; seriously lying is worse.
Although the law will carve out exceptions in cases where an employee’s dishonesty is not significant, serious forms of deception can be fatal not only to one’s reputation and integrity in the workforce and the community at large, but also to a person’s financial well-being. Therefore, when applying for a job, the best advice is the simplest: be honest.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.
This article originally appeared in The Bottom Line, Mid-October 2014 Issue.