Do Better Hiring - The RecruitLoop Blog

Misrepresent the Job and Everybody Loses

job ads, job descriptions, roles and responsibilities, employer misrepresentationWhen advertising a position, it can be tempting to exaggerate its attributes in order to attract the best possible candidates.

The danger with this is that if you attract a candidate who is over-qualified, they will not only be unhappy in the role and leave within a short time, but they may also accuse you of misrepresenting the job.

Candidate Misrepresentation

There have been numerous instances of candidates embellishing their resumes or even downright lying in order to get the job.

A recent high-profile example was former Yahoo CEO, Scott Thompson, whose CV included a fictitious Computer Science degree from a Boston college.

This bogus degree was featured in his CV through two different high-powered positions, simply because no one in either company thought to pick up the phone and check his credentials.

To protect yourself from candidate misrepresentation, you should always conduct at least two verbal reference or background checks before making any new hire.

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1. Catchy Job Title

Employer Misrepresentation

While candidate misrepresentation usually leads to perfunctory dismissal of the employee, the repercussions of employer misrepresentation can be far more serious.

In the first instance, hiring a candidate under false pretences can have a negative impact on your entire team. A disgruntled employee will not give 100% to a job they did not think they were being hired to do.

They will also spread negativity to the employees around them and from one bad seed, a tree of dissention can grow.

Secondly, they are unlikely to want to stay in a job that was misrepresented to them, so from the moment they discover they have been misled, they will be looking for another job on your time.

Then they will leave, probably at short notice, and you will be faced with all the trouble and expense of hiring a replacement for them.

In the worst case scenario, they will accuse you of misrepresenting the job and seek legal recourse, something that is starting to happen more and more.

Negligent Misrepresentation

There have been a number of cases in the US where candidates have sued successfully for ‘negligent misrepresentation’ by an employer.

Unlike fraud, negligent misrepresentation is where an employer exaggerates the responsibilities of a position, neglects to mention conditions upon which salary or promotions may be contingent, or makes promises they simply cannot keep.

In order to sue for damages, the candidate must have suffered damages as a result of your misrepresentation. These damages could be in the form of expenses associated with relocating to a new state or losses incurred as a result of turning down another job to accept yours.

Recruiters can also be sued for negligent misrepresentation, if it can be shown that they ‘consulted’ with their client, regardless of whether they knew the job advertisement to be exaggerated or untrue.

Case Studies

In Australia, two provisions of the Competition and Consumer Act 2010 (formerly the Trade Practices Act 1974) have been used by employees to establish claims of misrepresentation by employers.

Cases where these provisions were used to establish claims include:

  • Walker v Citigroup Local Markets Australia Pty Ltd – in which a stockbroker successfully established misleading or deceptive conduct by the prospective employer over representations about a future job that did not eventuate.
  • Morton v Interpro Australia Pty Ltd and Anor – in which a sales employee established misleading conduct by the employer over a bonus structure that was promised but not delivered.

When you add up the costs of lost productivity and rehiring expenses, a bad hire, whether through candidate or employer misrepresentation, will cost you around three times the candidate’s salary. So before you promise a certain salary, promotion within a certain timeframe, a company car or an office with a view, make sure you can deliver. Because while everybody loses when a job is misrepresented, the biggest loser in most cases is likely to be you.

Paul Slezak

Cofounder at RecruitLoop. I've been a hands on recruiter, manager, trainer, coach, mentor, and regular speaker for the recruitment industry for 20 years. Follow me @paul_slezak.

  • Anon

    I am an independant contractor that was hired to do scope work for a general contracting company for a set salary. I was told if i wanted to do some of the work orders i would be paid seperately for them, but after doing some the company came back and said no its my job to do it because im on salary. And i’ve just found out that the guy who everyone said was the owner of the company is not the one listed as owner on their website. The one listed is someone i have contact with regularly and says the other guy is the owner. Can i sue them for misrepresentation?

    • OreoMilkLover215

      im hoping by now you’re realizing you can sue. My sister sure will after i share this with her. i wrote more above in a new post.

  • suesmaller

    I moved to the Seattle area to take a job through a placement firm. The firm placed me at a Fortune 500 company. From the start, everything worked out well; I was given outstanding feedback from my boss about my work. He said he really wanted to hire me. He was even going to send me to a major conference.

    The Fortune 500 company manager was thinking of me in the long term, and was grooming me to take over from someone else.

    Pager duty became one of the duties, and one of the conditions of employment.

    The placement firm had told me that there would be no pager duty. All along, I told the person I reported to at the placement firm that I could not do pager duty if it required night time work. My manager at the placement agency told me that, if it became a requirement, I should tell my manager at the Fortune 500 company that I couldn’t, and then he would negotiate with me. Well, as it turned out, that wasn’t true. My manager at the Fortune 500 company told me that the whole point of the contract-to-hire was find out whether the candidate was capable of pager duty.

    So, my contract was summarily terminated. My manager at the placement agency not only misled me about the requirements of the job, but she blabbed everything about my coworkers and me, including telling me about (in great detail) my coworkers’ health issues. Then, when it became evident that I couldn’t do pager duty, my manager at the placement firm blabbed to the forutne 500 company that I had given her a rough time. From that point on, I knew I was going to get fired, and that did happen three weeks later. I think I became a scapegoat for both the placement agency and the Fortune 500 manager. I am now seeking legal counsel. I really don’t want to go through all the difficulty of suing, but I am appalled that the agency would destroy my candidacy and reveal HIPAA-covered information to my coworkers, where it got out into the Fortune 500 company.

    So I was screwed. I’m also considering filing an EEO complaint. Plus, I’ve been trying to find out which trade association the placement is a member of, and complain to them.

    I guess I could file a complaint with the BBB.

    So I would add my voice that placement agencies really only care about their clients. Being in a temp to perm position was extremely awkward, because you are reporting to a placement agency instead of directly to the company. If the placement agency is less than scrupulous, they can cause a lot of problems.

    • OreoMilkLover215

      “the difficulty of suing?” smh if you’re not willing to put in the astute, and hard work involved then you shall falter. I wrote more above about my sister,who i am sure will be suing, now that i found this info for her. Good luck whatever you’re electing to do. BBB Is bought off by many um “businesses.”so everyone know that.
      Suing is the astute way, to hit em where it hurts, lawfully speaking

  • OreoMilkLover215

    omg recruiters suck. they are the worse and thank you for this great site, i am showing my sister it. she has been mislead by literally 86 recruiters via phone, and email. I know she will find this helpful. Even turned down a few jobs premise on the recruiter negligent misrepresentation. This is something she will find quite interesting.

  • O J

    I was offered a full time on call opportunity, so that means they’ll call me in on the days they need me to work (full time ) 40 hrs a week. Well this is my second week and I have only worked 13 hours. Im stressing about my upcoming bills and responsibilities.Can I seek legal action?

  • Chris

    I was hired away, by a recruiter, to a job working on “Cancer research” from a well-paying job I could retire from. Turns out the job had nothing to do with cancer research and it was a toxic workplace with ethnic slurs, cussing, yelling, you name it (one disgruntled employee liked to talk about guns). I resigned of course out of safety for my life. Now my life is upside-down, and once what was tenable before the “recruiter” is now a nightmare. Ageism is rampant, so what looked like I would be able to finally buy a decent home is not possible now. (I spent $10,000 of my savings to bury my mother and brother a few years ago, a couple thousand to bury by father who died of cancer, and to cover my current medical bills I will have to eat into my savings until I can get lucky enough to find a company that isn’t ageist, but I will have to take lowball offers, and be a miserable wage slave until I die). Thanks recruiter. I could of course sue, but there’s not enough money in it for a good lawyer. And I cannot help feel this is my fault for being gullible. No matter what a recruiter or company says (or their media friends say) or anything, you will not know what the job entails until you work there.

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