To "engine ear" - you locked your thread

[quincy]

engine ear, you appear to have locked your thread ("Recruiter Misrepresented Insurance Coverage") by mistake.

I can answer the two questions you asked here, though, if these were the extent of your concerns. Otherwise you will want to click on "Administrative" above your post and click "open."

You asked: What type of lawyer to contact? And, in what specialty would they be practicing? Answer: an Insurance Attorney (<--- actually, a Contract attorney is the correct answer )

 

[cbg]

And I can answer a bit more.

It is not possible to "negotiate" the terms of the STD policy, or any other employer-sponsored insurance policy either. You get what the other employees get; they're not going to purchase a new policy just for you with the terms you want. It's a shame that the recruiter misunderstood and provided incorrect information, but she did not have the authority to change the terms of the existing policy and it's doubtful the employer could have done so either unless by sheer coincidence the end of their contract with the existing carrier happened to fall exactly with your start date. (And even if it did, unless you were literally the only applicant with your skills in seventeen states and they desperately needed you and no one but you, I can't see them taking on what would have been a much more costly policy just to recruit you.) If the STD policy terms were not to your liking, the ONLY option you had was to turn down the job and find one where the benefits suited you.

So unless you've got written offers of employment elsewhere that can be third-party verified as having the STD policy you wanted but that you turned down in favor of this one, I can't see you prevailing in any lawsuit against the recruiter. And even if you do, it's iffy.

 

[BeckBoo]

Quick question Engine Ear - do you pay for the benefit or does the company pay for the benefit? The reason why I ask is most of the time with employer paid STD insurance, there is rarely a pre-ex clause, I have seen it, but it is rare.

 

[cbg]

Wouldn't change anything. There's no requirement that employer-paid STD policies not have a pre-ex clause. If THIS one does, then it doesn't matter how many others don't.

 

[justalayman]

Cbg,

I don't think he negotiated anything regarding the std. He negotiated the job in whole but I believe the point was that he is trying to nail the recruiter down to apparently false representations he made in inducing the op to accept the position.

Quincy/ I don't think an insurance lawyer would be the proper area of practice either as this is not an insurance issue but a contract issue, even if the terms of the std policy were not included in any contract that may be involved.

 

[cbg]

Oh, I get that, JAL. My point is that unless he can show conclusively, to the satisfaction of the judge, that he would have turned down the job but for the STD benefits AND that he not only could have, but would have, had the benefits he wanted elsewhere and he turned that job down on the basis of the STD benefits for the job he's in, he can sue all he likes but he won't win.

 

[justalayman]

Oh, I get that, JAL. My point is that unless he can show conclusively, to the satisfaction of the judge, that he would have turned down the job but for the STD benefits AND that he not only could have, but would have, had the benefits he wanted elsewhere and he turned that job down on the basis of the STD benefits for the job he's in, he can sue all he likes but he won't win.

I don't agree. It was not a negotiable point but it was a material misrepresentation that induced the prospect to accept the position. It would be no different than offering a prospect a position in Hawaii but then after hiring assign them to an office in some other decent but not as nice of place in the country. While the employee may have accepted the position in either case, the fact remains, it is a representation made to induce the contract.

Once you settle that point, you have to determine damages. In a difference of location, it is very difficult but with something like a misrepresentation of the STD, it is simple. The difference in benefits of what was presented to the prospect prior to hiring and what they actually receive as actual benefits.

I don't believe it went as far as fraud in the inducement to enter the contract but it was still a misrepresentation of a material fact that affects the employee, even if it was simple a mistake.

That is why OP wants to go after the recruiter rather than the employer. He is the entity that made the misrepresentation.

 

[cbg]

Unless it was the SOLE factor that induced him to take the position, I still don't think he has a prayer. And if it was, I'm not overly optimistic of his chances.

Seriously. He was going to turn down the job unless the STD policy didn't have a pre-ex clause?

 

[quincy]

... Quincy/ I don't think an insurance lawyer would be the proper area of practice either as this is not an insurance issue but a contract issue, even if the terms of the std policy were not included in any contract that may be involved.

Ahh. But if engine ear contacts an insurance lawyer, the insurance lawyer will tell him to contact a contract lawyer.

I obviously read through engine ear's other thread quickly.

I am not sure I see that engine ear has much of a legal action against the recruiter, unless he can show that the recruiter knew that what he was saying about the insurance was false and the recruiter had reason to know or believe that engine ear was relying on the specifics of the insurance coverage in determining whether or not to take the job. This could be difficult to prove.

I will rely on cbg's employment law knowledge to answer whether the employee insurance policy is presented for review to an applicant prior to hiring. If so, it would be on engine ear to confirm through the reading of the policy whether the coverage was what he wanted or needed. If engine ear did not know or discover the facts about the insurance before making the contract (and he had the ability to do so), it would make engine ear's reliance on what was said by the recruiter unjustified.

 

[cbg]

As a standard, the actual policies are not presented to an applicant. Applicants can and do ask for details about the policies. As a representative from the Benefits office, I will not send a copy of the actual policy to an applicant but I will, upon request, send a copy of the "cheat sheets" that have the high points of the plan. Not all employers handle things the same way, so YMMV.

I will point out again that the benefits are what the benefits are. Unless engine ear is is going to claim that he would not have accepted the job but for the recruiter's representation of the STD benefits, he does not have a claim to bring.

 

[justalayman]

just so you dont think i am crazy, i seriously doubt the op has a winnable case either but just not for the reasons you have presented. i suspect op cannot prove the statement regarding the no pre-existing limitation and that is why i think he will lose. if he can prove the statement, i think he has a good chance of prevailing. i just cannot imagine any claim the statement was made, short of it being in writing, wouldn't be easily explained away as misunderstanding what the recruiter told the op.

 

[RRevak]

Seeing as Op made the specific request regarding clarification of the policy before being hired, I firmly believe he both knew he would more than likely need it and that it would be a deal breaker if not offered. Why else would he ask for clarification of a policy most don't need? One doesn't just stumble into back issues severe enough to need surgery within such a short period of time without prior knowledge there were issues. So if he had it in writing (stated in his other thread) that the policy covered his situation, and my a$$umption he would have not gone with the job had they not offered such policy because he already knew he would more than likely need it, how is he not able to potentially prevail in suit?

 

[Zigner]

Seeing as Op made the specific request regarding clarification of the policy before being hired, I firmly believe he both knew he would more than likely need it and that it would be a deal breaker if not offered. Why else would he ask for clarification of a policy most don't need? One doesn't just stumble into back issues severe enough to need surgery within such a short period of time without prior knowledge there were issues. So if he had it in writing (stated in his other thread) that the policy covered his situation, and my a$$umption he would have not gone with the job had they not offered such policy because he already knew he would more than likely need it, how is he not able to potentially prevail in suit?

To follow along with this train of logic, the OP also would have asked for a copy of the policy after being hired. Upon seeing that the clause was not as explained, the OP would have raised a stink many months ago...

Furthermore, I disagree that the OP wouldn't have accepted the job. I'm sure that, with a choice between work or no-work, one would choose work.

 

[justalayman]

Seeing as Op made the specific request regarding clarification of the policy before being hired, I firmly believe he both knew he would more than likely need it and that it would be a deal breaker if not offered. Why else would he ask for clarification of a policy most don't need? One doesn't just stumble into back issues severe enough to need surgery within such a short period of time without prior knowledge there were issues. So if he had it in writing (stated in his other thread) that the policy covered his situation, and my a$$umption he would have not gone with the job had they not offered such policy because he already knew he would more than likely need it, how is he not able to potentially prevail in suit?

glad you pointed that out. I had forgotten that.

I recently (6 months ago) started a new job. I negotiated my employment through a Recruiter. I asked about Short Term Disability during the negotiation and was told in writing by the Recruiter "pre-existing conditions will not be a factor as long as you sign-up when you start".

if that is the case, then I think he has a decent case.

and it isn't a matter of whether he would not have accepted the job at all. It is a material misrepresentation of the conditions surrounding the employment and that alone is a grievable matter.


now, it the recruiter has any "pull" with the company, OP better have a pretty solid written contract. Since the employer can otherwise terminate the OP for missing time with no FMLA protections, OP may be jeopardizing his job.

 

[cbg]

The only way I can see even a ghost of a chance of the OP prevailing is if he can prove - not just say, but prove that but for the recruiter's representation of the STD benefits, not only would he not have accepted the job but that he would now be in a position that WOULD have those benefits. Otherwise he has no damages. If he'd turned down the job on the basis that the benefits were not to his satisfaction, he still wouldn't have any income coming in unless he'd already picked up another job that DID provide disability benefits.

Without that proof, he not only has no damages, he'd have been worse off because the STD policy currently in place does provide income for part of the time, just not all.