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Can you be fired for what you don't say?

Posted by Scott M. Peterson | Mar 02, 2017 | 0 Comments

The ride share company Uber has had a rough couple of weeks.  

First, the company was jolted when a former employee wrote a blog post detailing her experience with sexual harassment while employed as an engineer.  Then came revelations of an altercation between Uber's CEO, Travis Kalanick, and an Uber driver, which occurred when the driver took the opportunity of driving his boss around in an Uber to complain about the company's employment practice and history of reducing wages.  Once again the video of the altercation went viral, causing Mr. Kalanick to issue a public apology and admit to his own leadership problems.  

And then comes news that an Uber executive - its Head of Engineering - was fired after Uber learned that he had failed to disclose that his departure from his prior employer - Google - was the result of a sexual harassment complaint by an employee.  

This, of course, begs the question - what exactly do you need to tell a prospective employer?

The answer, as with most issues in employment law, is that it depends.

In the case of the Uber executive, when you look a bit deeper you see that while at Google the company received a complaint of sexual harassment, which it investigated and determined had merit.  The company was apparently prepared to fire him, but instead he was permitted to resign.  Apparently, his resignation letter (not surprisingly) did not refer to the sexual harassment situation, and he was given a going away party by the company (another example of poor judgment in the workplace).

So, when he applied for a new position was it his responsibility to fill in the gaps, or was it the responsibility of the employer to dig deeper into the reasons for his departure?

When you apply for a job it is not unusual for an application to ask about your most recent employment and the circumstances of your departure.  Normally, however, you can answer that question with a simple “resigned”, rather than “terminated.”  If the employer fails to ask you about the reasons for the “resignation”, can you be blamed for the omission?

Ultimately we are taken back to the fact that, at least in New York, the at-will status of an employee means that whether your boss thinks that you omitted something, were not forthcoming with something, or flat out lied, doesn't matter.  What matters is that if the company determines that you need to go, you can generally be fired.

In this case it's likely that one of two things happened.  Either the Uber executive was less than truthful during his interview when discussing the circumstances of his departure from Google, or the interviewer failed to ask him about it in sufficient detail. 

In the end, however, it doesn't matter.  He got caught in a situation where his employer was facing mounting public pressure with respect to its handling of claims of sexual harassment (they have apparently hired former US Attorney General Eric Holder to handle the internal investigation) and needed to make a public showing that they will not allow this sort of behavior to stand in their company.  It makes sense. 

And while the example of the Uber executive may seem extreme, the principles here are not.  The fact is that in most cases an employer can dismiss an employee the moment it feels he or she was dishonest, and can also dismiss an employee to help “protect” itself or its public image.  This happens all the time.  There are exceptions of course, like for example when an employee is the one making the complaint of sexual harassment or participates in an investigation into sexual harassment – both are protected from retaliation

But in the end, more often than not it pays to be forthcoming when applying for a job.  In the world today almost nothing can be hidden, and it's likely just a matter of time before you get caught, and fired.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on exclusively representing individuals in a small number of employment and serious injury/medical malpractice matters. Scott's favorite part of practicing law is getting in front of a jury and standing up for an individual against a large company or institution.

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