Further Evidence Concerning Importance Of Well Drafted Employment Applications


By:  Claudia D. Orr

One of my recent articles entitled “One Fibber and Two Dismissals” emphasized just how important it is to have your employment application reviewed by a competent, experienced employment attorney. That article showed how an employer obtained dismissal of a sexual harassment claim because of a “resume fraud” defense built into its employment application. Now, in Sams v Common Ground, the Michigan Court of Appeals affirms dismissal of a disability discrimination case because of another defense built into the employment application. 

We know very little about the facts of the case because, other than timing of events, they simply aren’t relevant to a dismissal based on a limitations period. On August 15, 2011, the plaintiff applied for work at Common Ground.  The application required the applicant to agree to a one year contractual limitations period, meaning any lawsuit against the employer had to be brought within one year of the accrual of the claim, or it was time barred.  Plaintiff was hired as a crisis interventionist, but was reassigned to the position of a recovery coach within a year. That position lowered plaintiff’s wage rate and affected his fringe benefits.  A few weeks later, plaintiff tendered his resignation, resigning effective September 30, 2012. 

Two and a half years later, plaintiff filed a lawsuit claiming Common Ground violated Michigan’s Persons with Disabilities Civil Rights Act and that he had been constructively discharged (meaning his employer’s actions left him with no choice but to resign).  Normally, claims brought under Michigan’s civil rights statutes are subject to a three year statutory limitations period.

However, based on the contractual limitations period found in the employment application, the circuit court dismissed plaintiff’s lawsuit and the appellate court affirmed. Plaintiff challenged the contractual limitations period on numerous grounds (including unconscionability) all of which were rejected because the clause had been properly drafted.

As I often say, a well drafted employment application is an employer’s first line of defense.  The contractual limitations period that I draft requires claims to be brought within 180 days. However, for this to be enforceable as to federal discrimination claims it must be drafted in a manner that considers the filing of charges filed with the Equal Employment Opportunity Commission.  While the Commission takes the position that any shortened limitations period is unlawful as to federal discrimination claims, there is ample case law to suggest otherwise.  If you have not had your company’s employment application reviewed recently by experienced employment attorney, such as the author, it is advisable to do so sooner rather than later since the next employment claim could be right around the corner.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. February 2017.