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Can I Fire an Employee Who Lied on Their Resume?
An employee who lies on his or her resume or on his/her employment application has committed a form of fraud because he or she has provided false information. This is true even if the employee has worked at your company for many years; firing without notice is entirely legal. There are a few cautionary notes, however. This article discussed some of the legal issues involved. As always, a good San Diego corporation attorney should be consulted for advice on the best method of accomplishing the employee termination with the least risk of litigation.
San Diego Corporate Law: At-Will Employee vs. Under-Contract Employee
Legally speaking, the issue of firing an employee for lying is less complicated when the employee is an at-will employee. Under California law, an at-will employee can be fired for any reason or no reason. That is, an employer may terminate an at-will employee for any reason that does not violate a fundamental public policy (such as firing an employee because of his or her race). This is set out in the California Labor Code, §2922 which states: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”
Thus, if the employee who lied on his or her resume is an at-will employee, termination can be done immediately with little legal risk. The best legal practice is often to fire the employee without providing a reason. Providing a reason invites argument and potential litigation.
A different legal calculus is needed if there is an employment contract, generally for more senior and managerial employees. If there is an employment contract, then the contract must be reviewed to see if there are limits on the ability to terminate the contract and if certain procedures are required. If certain procedures are required — such as notice and/or some sort of investigation or some sort of progressive discipline — then those procedures should be followed. Further, the issue of materiality is implicated. As an example, if the resume states that the employee worked for a previous employer for two years when, in fact, the length of employment was one and a half years, that difference is probably not material. The employee’s statement might be technically false, but it is important enough for termination? Would that six-month difference have resulted in a different decision with respect to hiring? On the other hand, if the false statement related to where the employee received his or her professional degree, that would likely be material grounds for dismissal. There are other and related legal issues. Thus, if an employment contract is in place, it is wise to seek legal counsel before acting to fire the employee.
San Diego Corporate Law: Seeking Damages if an Employee Provides False Information
It is possible under some circumstances to seek damages against an employee who has provided false information. An example might be where the salary provided was based on a certain level of claimed professional or educational achievement. Teachers and professors are often paid a different rate depending on if they have obtained a Master’s degree or a Ph.D. If the employee lied about having a Ph.D when they only had a Master’s degree, then, in theory, they should disgorge the excess payment received based on the false representation. However, litigation is expensive and time-consuming and it may not be worth the time and effort. Often, the most important goal to achieve is the termination and removal of the employee.
Contact San Diego Corporate Law Today
For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard has extensive experience in drafting employee policies, employee handbooks, employment contracts, and the other contracts and agreements necessary for running your business. Mr. Leonard can be reached at (858) 483-9200 or via email.
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