Most job candidates know that falsifying a job application is grounds for being denied employment.
Unfortunately, that doesn’t always stop them from doing it, however most understand the consequences if they get caught.
Conversely, most employers are conditioned to believe they are well within their rights to deny employment on the basis that someone lied on the job application. In fact, I recently conducted a webinar and was asked if it is easier to deny employment based on an application omission or fabrication discovered on a background check rather than going through the adverse action process.
Given this generally accepted principle and the current legal landscape concerning employment background checks, it might be time to question if employers truly have the legal right of way to take such action.
Because there’s no easy answer, let’s start with the aforementioned question about whether it’s easier not to go through the adverse action process if you can fall back on the fact that the person lied on their application.
Let me be crystal clear on this: No, No, No, and No!
If an adverse hiring decision is made in whole or in part by information that was discovered on a background check, you absolutely must follow proper adverse action procedures.
This means, prior to making a final decision, you must send the candidate a pre-adverse action letter and provide a copy of their report and a Summary of Rights under the Fair Credit Reporting Act. After giving the candidate a reasonable opportunity to reply, if the candidate doesn’t contest the results, you must then send the adverse action notification.
There is no ambiguity or room for interpretation on this.
What if a candidate omits the fact that they’ve been convicted of a crime when asked on the job application (where it’s still legal to ask)?
I asked our vice president of compliance and general counsel, Angela Preston, for her take on this and she’s not entirely convinced this practice is always legit. Her reasoning is that in some cases, the courts have said that an employer claiming that the person lied on their application is simply pretext for not following through on the adverse action process.
In other words, when there is a background check, and some type of record is found, it is likely that the background check had at least some bearing on the decision. So if any negative information is found, and you are leaning towards making a decision NOT to hire, the safer bet is to proceed with the adverse action process.
Each situation has unique facts, so the right answer will depend on your specific case. If a criminal record is found, and you are likely going to disqualify the candidate, my recommendation is to follow through with proper adverse action procedures. This is true even if part (or even most) of the decision is based on the applicant’s omission.
How does this same principle apply to candidates lying about their academic credentials or past employment?
There would seem to be a clearer path to using a fabrication about someone’s qualifications as grounds to reject a candidate based on falsifying an application, but don’t lull yourself into the false sense of security that you are in the clear. Once again, if the discrepancy, fabrication, tall-tale, embellishment or lie is unearthed by your background screening company, you should follow proper adverse action procedures as detailed above.
It is still legal to reject a candidate for falsifying an application. However, if you discovered the information that uncovered the falsification from a consumer report, you need to follow the two-step adverse action process.
Failure to do so could invite a whole world of problems you don’t want to consider.
This was originally published on the EmployeeScreen IQ blog.
