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LAW 529 (123)
Chapter 3

Chapter #3-Common Law Issues.docx

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Law and Business
LAW 529
Pnina Alon- Shenker

Chapter 3 Common Law IssuesAREAS OF COMMONLAW LIABILITY 1 Misrepresentation by Job Candidates y Misrepresentations made by EEs before they are hired may justify dismissal if the misrepresentations go to the root of their qualifications for the job y An ER can terminate an EE as a result of that misstatement even if the EE is performing the job satisfactorily y This principle also applies to false statements for example lack of honestly and the job requires a high degree of trust y To emphasize the important of honesty in filling out application forms the ER should include and Attestation Clause at the end of all job forms o This clause should state that the info provided is true and complete to the applicants knowledge and that the applicant realizes that a false statement may disqualify them from their employment or be the cause for their dismissal2 Wrongful Hiring Negligent Misrepresentation Misrepresentation by an ER y An ER may be legally liable for inaccurate statements made during the hiring process y If EE suffers from the misrepresentation the ER may have to compensate the EE y Negligent Misrepresentation demonstrates the potential liability that exists when an ER fails to ensure the accuracy of statement made during the hiring process y To establish a negligent misrepresentation the following test must be met o There must be a duty of care based on special relationship btwn the party making the representation and the candidate o The representation must be untrue inaccurate and misleading o The party making the representation must have acted negligently in making the misrepresentation o The candidate must have reasonable relied on the negligent misrepresentation o The reliance must have caused harm to the candidatey There are aof steps and ER can take to avoid liabilityo It should ensure that all info given at the preemployment stage is accurate and complete o Should ensure that job description is accurate and that all interviewers know what the perspective job and compensation package involve o When a candidate is chosen the ER should prepare a written contract that sets out the terms of employment o Contract should include a clause that states that all oral representation are void on the signing of the contractExecutive Search Firm Misrepresentations y The employer is generally liable for negligent misrepresentation by a recruitment firmy An executive search firm may be held liable if it is negligent in the way it conducts its search and the employer suffers damages as a result y The ERs contract with the search firm should specify the position compensation and career potential for the job and restrict the firm to providing only that info to job candidates y Contract should also include and indemnity clause establishing the search firms liability in the event that it makes a misrepresentation to a candidate that the ER is subsequently held liable for3 Inducement Aggressive Recruiting y A tort known as inducement allurement or enticement occurs when and EE is lured from their current positions through aggressive recruiting or inflated promises y Involves more than advertising a position y It requires a significant degree of pursuit such as repeatedly contacting the candidate and encouraging them to leave their current job y Tort of inducement can occur when the recruiter promises such things as promotions salary increases job security or benefits y In determining the length of notice of termination that a dismissed EE is entitled to court looks at length of service age position and the availability of similar employment
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