What Should Employers Do About Misrepresentation?
People stretch the truth every day in seemingly harmless ways.
Recently, Americans were reminded just how prevalent misstatements are not only in personal life but also in the workplace, when NBC News anchor Brian Williams came under fire for misrepresenting his wartime reporting experience.
After Williams acknowledged his mistake in saying he had been in a helicopter that was shot down under enemy fire while he was reporting in Iraq in 2003, NBC News suspended Williams for six months without pay. Williams has hired attorney Bob Barnett to help prevent his termination after the six-month period.
In January, Veterans Affairs Secretary Robert McDonald was caught misrepresenting his wartime duties, claiming to a homeless veteran that he had served in special operations forces. McDonald has admitted the misstatements were wrong and apologized for them.
Although truth is black or white, misstatements are gray, and determining the best way to handle workplace misrepresentation is complicated. What is the appropriate reaction from an employer?
I contacted several employment attorneys via email to delve deeper into what employers might do if they find employees have acted inappropriately, made misstatements or are caught outright lying.
In most situations, employers do have the legal power to fire dishonest employees. "Most employees are employees at will, meaning that barring a statute or case law that precludes termination, they can be terminated for any reason or no reason at all,” Patricia Wilson, a professor of law at Baylor Law School in Waco, Texas, writes me by email.
"If those employees are terminated for lying or exaggerating, they have no legal recourse," she says.
Some individuals in high-profile positions have contracts that govern when they can receive disciplinary action or be terminated.
"One of the typical types of clauses in such a contract would be if the employee engaged in behavior that put the employer in a bad light with the public, hurt its reputation," writes Rebecca Winterscheidt, who co-chairs Snell & Wilmer's labor and employment group in Phoenix, Ariz.
Not only is firing employees for dishonesty typically within an employer's rights, but it is also generally viewed as valid, Jonathan Israel, a partner at Foley & Lardner in New York City, explains to me.
"Bottom line: Misrepresentation, exaggeration or lying is the kind of behavior that reflects a lack of professionalism and poor judgment and breaches the employer’s trust, often irrevocably," he says.
But the decision to terminate an employee isn't always cut and dried. "Employer decisions must take into account a variety of factors, which are generally a mix of legal, business, and practical considerations,” Israel says.
When determining disciplinary action, employers examine the level of misconduct.
"Honesty and truth fall on a spectrum running from exaggeration to little white lies -- to outright lies and deception,” Wilson explains.
"What is acceptable is often dependent on context," she says. "While a criminal defense lawyer may not lie about her client’s guilt, she is expected to do everything she can, subject to the rules of ethics, to spin the truth in hopes of avoiding a conviction.”
Whom the employee is deceiving and why also factor into the equation.
"There may be many industries or businesses where an employer has no problem with an employee exaggerating or lying to a customer or outsider," Israel says. "However, an employer may view an exaggeration or lie much differently if it is made to the employer itself or others in the company."
An employee's position also figures into what is considered acceptable in terms of stretching the truth.
“For compassionate reasons, a physician might be inclined to shade the truth or withhold information from a patient, not fully telling the truth,” Wilson says. “Police officers, interrogating suspects, can and do lie about the evidence that they have or what they have learned from an accomplice.”
While some professionals have leeway in stretching the truth, dishonesty of any kind is out of the question for others. Dishonesty is a serious issue in highly regulated industries and for professionals in finance, law and journalism. In these contexts, trust and credibility are critical qualities for effective performance of the job. If these are jeopardized, employees may become useless to the employer.
The level, and public visibility, of a position can affect how a misrepresentation is perceived by an employer, as well.
“If we found out that the cameraman on NBC News exaggerated his heroics in some instance, I doubt he would be suffering the same consequences as Mr. Williams,” says Scott Schneider, a partner with Fisher & Phillips in New Orleans. "If the cameraman lied about taking footage that he didn’t take or lied on his timesheet, different story."
Range of disciplinary response.
Although employers might think they are justified in terminating an employee who lied, most won’t do so after a first offense, some attorneys say.
“Resorting to termination is traditionally a last resort,” says Nannina Angioni, a founding partner at Los Angeles-based Kaedian LLP. “Before taking that step, employers must consider various factors to ensure they are not increasing their exposure on other fronts."
Schneider agrees, citing only three circumstances where he would advise an employer to take disciplinary action: "When they lied about their credentials when seeking employment, if they lied about a substantive work-related matter or if they are in a high-profile position where their public credibility is key and they do something which compromises their credibility,” he says.
When is it OK for employers to discipline or terminate their employees for lying?