Resumé fraud. Resumé padding. Falsified job applications. Call it what you like, but the topic has figured prominently in the media as of late due to the discovery that a CEO of an international internet company, allegedly embellished his resumé.
The CEO’s resumé and bios, as well as certain filings that were submitted to the SEC, indicated that the CEO had received degrees in both accounting and computer science from his alma mater. (His college as it turns out did not offer a computer science degree during the CEO’s attendance.) Moreover, the SEC filings that the CEO allegedly signed off on specifically “affirmed” that the filings—which listed his dual degrees—were true and accurate.
After a number of investors became increasingly vocal and called for the CEO’s removal, his company issued a statement confirming the CEO’s departure.
Lying and resumé fraud – Are they the same thing?
Resumé fraud is an issue that many employers are forced to deal with. From an employment law perspective, is it okay for employers to turn down job applicants and fire employees who are suspected of engaging in resumé fraud? Generally, the answer is yes.
The Seventh Circuit, which covers Indiana, Illinois, and Wisconsin, has consistently held that it’s permissible for employers to reject job applicants and fire employees who are suspected of engaging in resumé fraud. The rationale for the Seventh Circuit’s reasoning is very straightforward: lying to employers is a legitimate and non-discriminatory basis for turning down an applicant or firing an employee. The cases of Carter v. Tennant Co., Aubuchon v. Knauf Fiberglass and Gilty v. Village of Oak Park all stand for this proposition.
Discovering resumé fraud after the fact – Too late?
Assume, by way of example, that an employer catches an employee stealing from the company cash register and fires him because of it. Also assume that the employee later sues the company for age discrimination. If the employer, as part of its investigation of the allegations in the lawsuit, discovers that the employee engaged in resumé fraud, can the employer use that belated discovery to its advantage? According to the United States Supreme Court, the answer is yes. More specifically, in McKennon v. Nashville Banner Publishing Co., the Supreme Court essentially held that an employer’s belated discovery of an independent, alternative basis for firing an employee (e.g., resumé fraud) can be used by the employer to reduce the plaintiff’s potential recovery. (Think of this as the employer’s “if we knew then what we know now, we wouldn’t have hired you in the first place” defense.)
As a result, if an employer finds itself in the cross-hairs of a former employee’s lawsuit, it’s in the employer’s best interest to try to ferret out any potential resumé fraud (or other misconduct) that the former employee may have engaged in.
What should employers do?
As the commentary above illustrates, resumé fraud is an issue that employers may have to deal with before the employment relationship begins (i.e., during the application process), during employment, as well as after the employment relationship has ended. Here are a few points to keep in mind:
- Be vigilant. Resumé fraud can reach the highest echelons of businesses and institutions. As evidenced by the events surrounding the internet company’s CEO that didn’t have the computer science degree he claimed, all applicants need to be carefully vetted. Make sure all required degrees, educational credentials and licensures are confirmed by the issuing agency.
- Consider including a statement on the job application (together with a signature line) whereby the applicant “affirms” that all of the information provided on the application is true and accurate. The statement should also explain that misrepresentations or omissions on the application may be justification for refusal of employment or, if employed, disciplinary action up to and including discharge.
- Don’t accept a resumé in lieu of a standard job application. It’s too easy for applicants to side-step certain questions when they only provide a copy of their resumé. (Plus, accepting a resumé by itself means the applicant wouldn’t be signing off on the “affirmation” statement referenced above.)
- Use common sense in dealing with resumé fraud. Someone that simply misspells the name of their alma mater probably shouldn’t be dealt with in the same manner as the person that lies about their prior conviction for drug trafficking.
- Be consistent. The pitfalls associated with an inconsistent strategy are two-fold: first, it’s bad for employee morale; and second, it increases employers’ potential exposure under federal discrimination laws.
- Because resumé fraud is akin to lying, disciplinary action is often an option available to employers.
If you have questions regarding this topic, please contact Dana Stutzman at dstutzman@wp.hallrender.com or 317.977.1425 or your regular Hall Render attorney.
