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BusinessColumnistsCarrie Mason-Draffen

Worker says ex-employer still using her résumé to get projects

Attorney says the former employer is breaking the law; employee should take action to protect herself.

It's risky for an employee to allow her

It's risky for an employee to allow her former boss to use her resume on project proposals, an attorney says. Photo Credit: Getty Images / iStockphoto

DEAR CARRIE: A year ago, I left my old job for a better one. So I was surprised to learn recently that my previous employer is still using my résumé in its proposals for new projects. I did not give permission for this, and certainly would not be part of my former company’s team if a project were awarded.

My former boss has a history of doing this. Other former employees’ résumés were used in proposals when I was there. Typically, when a company puts together a proposal to bid on a job, there is a section for “résumés of proposed project team,” and that includes those who would be working on the project.

Obviously, if some employees leave the company after the material is sent out, it’s understandable that their information would appear in the proposal. But this employer willfully uses résumés of former employees in proposals, knowing they won’t be working on a project. Is this legal? If so, what are my options? — Phantom Team Member

DEAR PHANTOM: Your instincts are right. Here’s what employment attorney Alan Sklover of Sklover & Co. in Manhattan said:

“What your former employer is doing is violating your ‘right of publicity’ — meaning that only you can sell, advertise or commercially exploit who you are, what you look like, your voice, and other elements of your personal identity,” Sklover said. “In effect, no one can sell those things but you, unless you have given them the right.”

The upshot is that “your former employer has no legal right to use your name, your photo or your résumé in his business without your prior consent, he said.

Here’s some reasoning behind the statutes:

“The law views a person’s name, photo and other personal information as that person’s unique and valuable assets, that she or he has a right to make use of, to protect, and to prohibit their use by others who are not authorized.”

Several states, most notably those with media centers, such as New York and California, have enacted laws prohibiting unauthorized use, Sklover said. They grant people the right to obtain a court order to stop the use and to sue for financial damages, too.

Besides misappropriating your information, your boss’ approach is fraudulent in another aspect, Sklover said.

“For your former employer to suggest to their business prospects that you remain an employee, and may work on their project, is also a kind of fraud,” Sklover said.

He advises you to take action to protect yourself. Failing to do so would be risky.

“Allowing this fraud to go on could end up with your getting sued for failing to do the work on time, or any negligence on the project,” he said. “It’s like allowing a friend without a driver’s license to drive your car; if your friend gets into an accident, you will likely be sued.”

And by taking action, you would forestall problems with your current employer.

“Your present employer might come to believe you are doing work on the side, even possibly competing with it, which could get you fired,” he said.

As for a solution, Sklover said he has urged clients in similar situations to try a three-step approach to halting the unauthorized use of personal identity:

First, write a “polite” letter requesting that the company stop using your name. Second, follow up with a “more compelling” letter by certified mail, suggesting that “without assurances the unauthorized use has been halted, you might have to contact an attorney, or even the company’s clients, prospective clients, its regulators, and others in their industry [to tell them] that you are no longer associated with the firm.”

If all else fails, ask an attorney to send a “cease and desist” letter, directing that litigation will result if your attorney does not receive written assurances that the unauthorized use will stop.

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