Employment Lawsuit Before You’re Hired

When you think of filing a lawsuit against an employer, it is often because the employment relationship has gone wrong. However, there are instances whereby a job applicant can file a lawsuit against an employer for not hiring them because of some of the things the employer said or did during the hiring process. This article will discuss some common legal claims used as a basis for lawsuits associated with the hiring process.

A previous article noted that the majority of hiring lawsuits are based on two scenarios. These scenarios are:

  1. The employer relies on prohibited information when making the decision on whether to hire the job candidate or not, or
  2. The employer misleads or lies to the candidate during the hiring process.

The most common legal basis used is discrimination and criminal history background checks. Other legally prohibited factors that are not to be used by employers to determine whether to hire an applicant or not include the following:

  • Credit history – the current economic atmosphere means many people may have bad credit records; as a result, it is less than fair to request or takes into consideration a job candidate’s credit report to determine whether they are suitable for the position. However, it may be necessary with certain applicants and certain positions to carry out a credit check.
  • Workers’ compensation claims – the majority of states prohibit an employer from using the fact that a job applicant filed a workers’ compensation claim with their previous employer as a basis for not hiring the applicant. You would have a legal claim if you were not hired because you have collected workers’ compensation claims in the past.
  • Misrepresentation – there are instances where an employer may make intentionally misleading statements in order to convince an applicant to take a job. And as a result of these statements, the job applicant leaves their current employment in anticipation or awaiting employment from the potential employer. Often lawsuits arise when the new job does not come about or only lasts for a short period of time. When this happens, the employee may have a fraud claim against the employer.

Other circumstances that may be a basis for a legal claim are those against a former employer who is preventing a job applicant from getting a new job. Some common legal basis against a former employer include the following:

  • Retaliation – the laws prohibiting discrimination also prohibit employers from taking action against an employee or job applicant that used their rights under such laws. As such, employees who often have retaliation as a legal basis for a claim are former employees, who were fired, demoted, or ‘punished’ for exercising their right to not be discriminated against or harassed. Often the action taken by the employer is lying why the employee was fired.
  • Blacklisting – some states prohibit employers from circulating an employee “blacklist,” thus preventing former employees from getting new jobs.
  • Defamation – where an employer makes false statements that damage the reputation of the former employee, preventing them from getting a new job.

For California background-check laws, contact a law firm of employment lawyers.

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