NEW GUIDANCE SUGGESTS THAT NO EMPLOYEE SIGNATURE IS REQUIRED ON DOCUMENT USED TO SUPPORT MISREPRESENTATION DEFENSE
In Rulla v. YRTC Kearney Pay Home, a plaintiff employee sought partial summary judgment to prevent the defendant employer from asserting the misrepresentation affirmative defense under Section 48-148.01. The employee argued that the employer lacked evidence of a written acknowledgment that the employee misrepresented his ability to perform the job’s essential functions.
Section 48-148.01(1) states that no benefits will be awarded for a compensable injury if the employer is able to establish the following three elements:
- The employee knowingly and willfully made a false representation as to his or her physical or medical condition by acknowledging in writing that he or she is able to perform the essential functions of the job with or without reasonable accommodation based upon the employer's written job description;
- The employer relied upon the false representation and the reliance was a substantial factor in the hiring;
- A causal connection existed between the false representation and the injury.
In Rulla, the employer planned to argue that the employee misrepresented himself when he filled out the online job application form. The employee answered “yes” in response to the question which asked, “Are you able to perform the essential duties of this position with or without a reasonable accommodation?” The employee was not able to perform the essential duties of the job. The employer intended to argue that it relied on this written misrepresentation and that a causal connection existed between the misrepresentation and the employee’s injury.
The employee argued that because the online application did not contain his signature, the employee did not make a formal representation that he could perform the essential functions of the job. The Court disagreed with the employee.
Ultimately, Judge Block held that there is no statutory requirement in the plain language of Section 48-148.01 that the employee must have signed the written document containing the misrepresentation. If the employee made the misrepresentation in writing, and the employer relied on it, that was enough under the statute (provided the other elements were met). However, the Court noted that whether or not the employee actually made the electronic statement, as opposed to someone else filling out the application for the employee, was a question of fact that would have to be resolved at trial. Since there was a question of fact as to whether the employee was the one who made the false representation in this case, the Court overruled the plaintiff’s motion for partial summary judgment.
This post was drafted by Ashly Helfrich, a law clerk at Baylor Evnen. If you have questions regarding a misrepresentation defense in your specific case, please call Paul Barta or Micah Hawker-Boehnke at 402-475-1075.