Partner, Whitten & Lublin Employment & Labour Lawyers, Toronto.
Employees sometimes lie about their background and qualifications. I have seen several cases where individuals were accused of exaggerating their credentials in order to negotiate a more prestigious job or better pay. To them, honesty is not always the best policy. When it turned out that there was some truth to these allegations, their cases invariably did not go well.
While not all fabrications can be seen as cause for dismissal, where there is dishonesty that goes to the core of the employment relationship, it is a form of serious misconduct that most employers will not ignore.
Several examples paint a clearer picture.
This year, an appeal court dismissed a lawsuit against Atomic Energy of Canada by a former employee who was fired after it was discovered that he lied about his employment history on a questionnaire used for screening candidates. The employee failed to disclose that he was currently employed elsewhere, presumably in order to avoid a reference check being conducted. According to the judge, there was a heightened obligation for employees of Atomic Energy to tell the truth about their employment history because of the highly regulated environment of the nuclear industry. It was within this national security context that this individual misled his employer.
Several years ago, Coopers & Lybrand Consulting successfully defended a lawsuit brought by an ex-employee it terminated after it learned that he lied about receiving a Ph.D. in applied mathematics when he was first hired. When the employee was later invited to become a partner in the firm, he was asked to support his doctorate, which is when his story unravelled. Coopers contacted the university that purportedly granted the Ph.D. and learned it had no record of him ever being enrolled. The court ruled that the employee's deception was the basis for his hiring and had he not lied about his background, he would not have received the job.
Yahoo's former CEO Scott Thompson was also forced to step down after an activist investor publicly challenged whether he embellished his academic credentials in filings for the company that falsely stated he held a computer science degree. Although Yahoo did not hire Thompson on the strength of this particular degree, the fact that he held a public position meant he had a greater responsibility to ensure that his employment record was not the slightest bit misleading.
Deceiving your potential or current employer can be cause for discharge when the misrepresentation is relevant to the reason it offered you the job to begin with, even if not discovered until many years later. Almost every resume I see lists travelling as a hobby. Notwithstanding that it is not always true, this is not dishonesty that disturbs the essence of the employment relationship, unless of course the candidate was seeking work as a travel guide. If that was the case, then dishonesty directly related to his or her qualifications to perform that job would almost always be cause for dismissal without severance.
Several of my clients have confessed to me that they told recruiters they earned more money than they actually did in order to negotiate a better offer. This is similar to telling your employer that you were offered a job elsewhere for more pay in the hopes it will match the phantom offer. These are some of the oldest tricks in the book, except they usually do not work out well. If your company ever discovered any part of your story was untrue, not only will you be fired, but you could even be sued for the extra money you would not have received but for this deception. This brings us back to the old case against Coopers & Lybrand. In addition to defeating the lawsuit, it was also awarded damages against its ex-employee for costs it incurred to replace him.
Obtaining a job under some form of false pretense is not just limited to resumes and cover letters. Overstating past tenure and job titles is also common, especially on LinkedIn, Twitter or Facebook, where little verification of this information is required. If a recruiter found a candidate on LinkedIn based on a profile that alleges proficiency with a particular technical skill that they don't actually have, is that cause for dismissal or merely a case of buyer beware? It's tough to tell. But at some point, an employer's obligation to perform its due diligence supersedes all of the misinformation that is made available online.
In an age where virtually every employee has created some form of public profile, it will be interesting to see how courts will grapple with misinformation that, while not used to apply for a position, was nonetheless taken into account.
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Daniel Lublin