You apply for a job, are hired, and are excited to start work, but you later discover that it's not what your new employer promised. You may be told even before your start date that changes are being made to the position or to your compensation, or that your start date is being postponed. You may discover upon starting the job, or shortly after you start, that the job duties are different than you were promised, or that the work environment or hours of work required are less favorable than you were told.
This type of surprise is commonly called a bait and switch job offer, an offer that attracts you to a job with one set of responsibilities, but results in your placement in a job with a different job title, different responsibilities, or lower salary. If you experience a bait and switch, what are your legal rights?
The most common bait and switch employment problems include:
- Hours: A salaried job requires more hours of work than you were told, an hourly job provides a significantly greater or lower number of work hours than you were promised, or the work schedule is not what was promised;
- Compensation: The hourly wage or salary is lower than was promised, or benefits are not as good as were promised;
- Job Duties: The duties you must perform as part of your job are different than you were promised, perhaps being beneath your skill set; and
- Job Title: Your job title is changed to something that will be less impressive in future job searches, perhaps making a promotion seem like a lateral move or even a demotion.
If you apply for a position, but upon being contacted to be told that you're hired learn that the job or compensation is materially different than you expected, your remedy is to decline the position or to attempt to negotiate for better terms of employment. Until you are hired, you have no contract with the prospective employer, and the employer thus remains legally entitled to offer you a modified position that they believe better suits their own needs or your skill set.
If you apply for a job and are hired, with an agreed job title, job description and compensation package, but are informed before your start date that the terms of employment have been changed, you should not assume that you will have recourse against the employer. Consider how you might avoid harm from the change, such as by trying to keep your current job or by negotiating for better terms with the new employer.
Bait and switch during the hiring process should be treated as a red flag, a warning sign that this is not an employer for which you truly want to work. If the bait and switch represents the way the employer is likely to continue to treat you after you start work, consider whether you would be best served by walking away.
What happens if you start your new job, but discover that it's not what you expected? A company that you were told was vibrant and growing turns out to be floundering and perhaps on the verge of insolvency. Your job duties don't match the description of the job for which you were hired. You are told that your salary is going to be reduced. Do you have legal recourse?
Most employment is at-will, meaning that either you or your employer may terminate the employment at any time, without cause. Only one state, Montana, provides statutory protection to employees that termination be for good cause, and even that law contains exceptions. If the employer's decision to modify your job is not prohibited by contract, and is not made for improper purposes such as discrimination based on race, color, religion, or sex, your employer has broad powers to change the terms of your employment or to end your employment, no matter what promises were previously made.
Unless you have a valid contract of employment with your new employer that specifies your job title, duties and compensation for an agreed term, or guarantees that the terms of your employment will not be changed except for good cause, you have few protections from changes. Your employer must not pay you less than minimum wage, and may not reduce your compensation for hours already worked, but may otherwise prospectively reduce your compensation. Your employer can reduce your hours, change your job duties, or lay you off based upon its assessment of its needs and financial circumstances.
Even with a contract, you may find that you agreed to allow modification of the job and your compensation during or at the conclusion of a probationary period.
When you find that a job is not what you expected, you may attempt to negotiate with your employer. If you cannot reach an acceptable compromise, you can consider beginning a new job search. You can also consider resignation, but within that context must also consider the financial hardship that may result. Sometimes a significant change in terms of your employment will allow you to resign and still qualify for unemployment insurance benefits, or a reduction in income will allow you to collect partial unemployment benefits, but unemployment benefits are modest in amount and are usually far less than you would make even at a reduced salary.
If you are an at-will employee, you will normally not have any legal protection from a bait and switch employment tactics. As you can be fired at any time, without cause, courts normally find that your terms of employment may be changed at any time.
Breach of Contract of Employment
If you have a valid contract of employment, specifying your compensation, job description and duties, and job title, and limiting your employer's ability to terminate you, you may be able to bring a breach of contract action if your employer changes the terms of your employment to your detriment in the absence of good cause.
Be careful when you enter into a contract, as you may find that the contract includes provisions that the employer may use to avoid liability, such as having your job description include language to the effect of "... and other duties, as assigned", or by expressing that the contract may be modified in the event of financial difficulties. Watch also for any clauses that limit your ability to file a lawsuit in the event of a dispute. Especially for highly paid jobs, have the proposed contract reviewed by a qualified employment lawyer before you sign.
If your employer breaches a contract of employment by changing the terms of your employment, but allows you to keep working, you may face a difficult choice of either resigning the job based upon the breach or accepting the modified terms of employment and losing your right to sue. If you may be facing that dilemma, consult an employment lawyer immediately so that you do not accidentally waive rights and remedies that you might otherwise have had.
Detrimental Reliance Upon the Employer's Promises
In some cases an employee who faces a significant change in the terms of employment, or the revocation of an offer of employment before the start date, may be able to make a claim of promissory estoppel, asserting that they relied to their significant detriment upon the employer's promises and that the employer should be legally barred from breaking its promises without compensation.
The remedy of promissory estoppel is rarely enforced by the courts within the context of employment. In most states, if you are an at-will employee you can be fired at any time, so the fact that you're fired before your start date, your salary is reduced, or your job is changed into something undesirable cannot support a legal action. The theory is that if the employer can fire you without cause after you start working, there is no reason to allow a damages award if you're fired before you start working, if you are demoted, if your compensation is reduced, or if your employer assigns to you less attractive job duties than you expected.
The rare exceptions typically involve an employee who incurred significant expenses and hardship to obtain a new job, such as by relocating to another state, and where the employer implicitly or explicitly promised to the employee a minimum term of employment or that termination would only be for good cause. Ordinary losses associated with a job search, such as resigning from a job that you are unable to regain after a new offer is revoked, are not sufficient to constitute the substantial detriment necessary to support this type of legal action.
If you believe that you may have grounds to argue that you reasonably relied on a promise of employment to your substantial detriment, and that the changes in your job or the termination of your employment may support a lawsuit based upon a theory of promissory estoppel, you should consult an employment lawyer for an evaluation of your case based upon the full facts of the case and the laws of the jurisdiction in which the lawsuit might be filed. The lawyer can also review your situation for other possible avenues of recovery.
As you will otherwise likely find that you will be unable to bring a legal claim based upon changes in your new job, how can you protect yourself from employment bait-and-switch?
- Get it in Writing: Before you begin your new job, request written confirmation of the terms of the job including the title, description and salary.
- Get a Commitment for a Term of Employment: Absent an agreed term of employment during which you may only be terminated or demoted for good cause, your employer has broad latitude to arbitrarily and unilaterally change your job and compensation, or to eliminate your job.
- Negotiate for Relocation Expenses: If you are going to have to relocate for the new job, particularly for upper level management and executive positions, you may be able to negotiate a bonus that will cover part or all of the cost of your relocation. If the job does not work out, even if all else fails you won't be out-of-pocket for that amount.
- Negotiate for a Signing Bonus: If you are able to do so, negotiate for a bonus to be paid in association with your starting the new job. If you find that the job is not what was promised, the bonus can help you cover expenses you incurred in association with the job change, or may provide you with a financial buffer if you need to resign.
If you negotiate for reimbursement of expenses or a signing bonus, make sure that you either don't agree to repay the amount if you resign within a specified time period (e.g., one year from your start date) or, if you accept such a condition, that you are prepared to repay the money or work until the repayment period has ended.