Ask The Lawyer By: Daniel A. Gwinn, Esq.

‘MASSAGING’ RESUME COSTS WORKER HIS JOB – AND MAYBE $100K TOO!

QUESTION: Over a decade ago, when I applied at the company I now work for, I exaggerated my educational background a little bit. I have an associate degree in business; I said I had a bachelor’s degree. I didn’t think a little massaging would be a problem; I had all the qualifications for the job; I thought a little boost in my degree might help me move to the front of the pack. I’ve been very successful; I’ve been promoted four times and regularly receive rave work reviews. A few weeks ago, the company did an audit of everyone’s qualifications, and my fib was discovered. I was fired. I threatened to fight my discharge, but the legal department said they would file a lawsuit against me, and ask for more than $100,000! Is that legal?

ANSWER: You could be in trouble. Under the Authentic Credentials in Education Act (ACEA), a person “who does not have an academic credential shall not knowingly use or claim to have that academic credential to obtain employment or a promotion or higher compensation in employment; to obtain admission to a qualified institution; or in connection with any loan, business, trade, profession, or occupation.” MCL 390.1604(2). Section 5 of the Act adds that a person damaged by a violation of the act – that is, by a false claim about credentials – may bring a civil action and “may recover costs, reasonable attorney fees, and the greater of either the person’s actual damages, or $100,000.”

            Your ten-year-old fib on you resume does appear to be a violation of the Act. Two other questions must also be answered: Was your employer damaged by your false claim to have a bachelor’s degree? Is any claim to damages within the Act’s six-year statute of limitations?

            Michigan’s Court of Appeals recently held that before there can be any damages in an ACEA case, there must be “proof of an actual injury or loss.” In deciding if your employer was damaged by your inflated degree a court considers not only whether your amped-up credential affected your employer’s decision to hire you, but also whether your subsequent pay rate and promotions were based on the existence of that credential.

            Even though the bachelor’s degree was not a job requirement, your initial salary may have been affected by your employer’s belief that you had the degree listed on your resume. If that initial starting salary affected all your subsequent raises, your employer might have a case for damages.

            That said, the ACEA has a six-year statute of limitations – and your claim to a bachelor’s degree occurred ten years ago. In the Court of Appeal’s decision, the Court ruled that when the original false claim is outside the six-year period, there must be evidence that the fraud was ongoing. In that case, there was no evidence that the worker had continued to make the false claim in order to receive promotions, or that the employer considered the fake degree when increasing the worker’s salary or awarding bonuses and promotions. The Court ruled there was no strict liability for violating the ACEA, but, unfortunately, it did not decide the case in the worker’s favor – it referred it back to the circuit court so both sides could present more evidence.

            Based on current law, it is possible that you could be found liable to your former employer. But the question of damages and liability depends very much on the evidence. You may want a lawyer to review all the facts before you go any further.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com

www.gwinnlegal.com

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