Whom to Hire: Rampant Misrepresentations of Credentials Mandate the Prudent Employer Make Informed Hiring Decisions

• Publication year: 2022

39 Creighton L. Rev. 827. WHOM TO HIRE: RAMPANT MISREPRESENTATIONS OF CREDENTIALS MANDATE THE PRUDENT EMPLOYER MAKE INFORMED HIRING DECISIONS

Creighton Law Review

Vol. 39

JOHN E. MATEJKOVIC, J.D.(fn*) AND MARGARET E. MATEJKOVIC, J.D.(fn**)

INTRODUCTION(fn1)

Literature Professor Quincy Troupe was a much-loved member of the University of California at San Diego faculty. He was a prolific and acclaimed poet who was just as committed to working with his students as he was to his scholarship.

When Mr. Troupe joined the UC-San Diego faculty in 1990, the university did not confirm his academic credentials, including his representation that he was a graduate of Grambling College. He represented that he had been awarded a bachelor's degree from Grambling in 1963 when, in fact, he had never completed a full semester. Mr. Troupe created this misrepresentation at the outset of his teaching career sometime during the mid-1970s, and the misrepresentation went undetected until it was brought to light during a background investigation in 2003.

The genesis of this investigation was an event that should have been one of the highlights of Mr. Troupe's professional endeavors - he was nominated by the Governor of California to be the official poet laureate for the state. Rather, this nomination resulted in the ultimate discovery of Mr. Troupe's misrepresentation of his academic credentials that in turn resulted in his resignation from the esteemed poet laureate position and his retirement from the faculty of UC-San Diego.

An academic anomaly? Unfortunately not.

OVERVIEW OF ISSUE

In today's workplace, an employer is confronted with a host of human resources-related issues, not the least of which is effecting hiring decisions that are appropriate for the organization and compliant with the plethora of employment laws and regulations. An additional, and often unexpected, challenge for the employer in this regard is awareness of and managing applicant misrepresentations about education, work experience, and the like.

In its 2002 Hiring Index study, ADP's Screening and Selection Services operating unit reports that 40% of individuals' resumes showed discrepancies in employment and education history,(fn2) and more than 50% of individuals' resumes contained discrepancies as reported in ADP's 2003 study.(fn3) According to a 2002 FBI report, in the United States, approximately 500,000 people falsely claim to have a college degree.(fn4) In fact, in a recent survey conducted with college students as subjects, 95% of the students stated that they would lie to get a job, and 41% said that they had already done so.(fn5) Misrepresentations are not limited to college students or other younger individuals embarking on their careers; the CEO of a global outplacement firm recently commented that some notable examples he has recently observed included top-level executives (e.g., chief executive officers, chief financial officers).(fn6)

So, why is it that all employers do not conduct thorough background investigations of their potential employees? And what considerations should be included in an employer's thorough background investigation process of its applicants?

This Paper explores a few of the myriad of considerations upon which an employer may wish to reflect when conducting thorough background investigations to attempt to select the most qualified individual for the position vacancy by recognizing the epidemic of credential falsification. Specifically, considerations are presented herein as related to background investigations impacted by criminal record verification and the Fair Credit Reporting Act.

BACKGROUND INVESTIGATIONS

According to the Society for Human Resources Management ("SHRM"), 82% of employers surveyed in 2003 conducted applicant background investigations, up from 66% in 1996.(fn7) But recently, the CEO of a global outplacement firm suggested that only about 15% of resumes are ever thoroughly checked by prospective employers.(fn8)

SHRM also reports that larger organizations are more likely to conduct a background investigation of an applicant, and companies employing less than 100 individuals are least likely to do so.(fn9)

The cost for an outside firm or organization to conduct a background investigation can range from as low as $50.00 to $300.00 or more per investigated individual.(fn10) While a background investigation can involve an employer's affirmative efforts to collect information about an applicant, it can also involve simple verification that the applicant is providing truthful information.(fn11) And, while an employer can perform its own investigation (often with information via the internet), internal investigations often result in significant costs to the employer in terms of administrative time spent.(fn12) In recognition of the costs associated with the application process (as well as to encourage only those applicants who have a strong interest in the available position), some employers have even taken the novel, sometimes controversial, approach of assessing an employment application fee to the applicant.(fn13)

In the age of seemingly endless items for sale on the Internet, one can find an example of an aid in perpetration of discrepancies and falsifications of credentials and reinforcing the need for thorough background investigations. Consider www.fakedegrees.com: customers of this website can purchase up to five fraudulent diplomas - even one from Harvard University - for a mere $75.00 registration fee.(fn14)

Recognizing that falsification of academic credentials is an area of growing concern, a growing number of states have enacted legislation prohibiting such conduct. For example, in Arkansas, the use of a false transcript, grade report, or diploma from a post-secondary educational institution is a misdemeanor and upon conviction subject to a fine not to exceed $1000.00 and/or six months' imprisonment.(fn15) In Florida, making false claims of an academic degree is a first-degree misdemeanor.(fn16) And in Tennessee, knowingly issuing, selling, or manufacturing a false academic degree is a Class A or Class C misdemeanor.(fn17)

In addition to verification of an applicant's claim of academic credentials, characteristics such as trustworthiness, reliability, and verification of a history void of violent behavior frequently are highly-relevant areas of investigation by an employer in the pre-hire process.

For example, while an employer may not be legally-mandated to deny employment to an applicant with a history of violence, the employer needs, at minimum, to take such a history into consideration prior to employing the individual lest the employer face later claims based on tort theories of negligent hire, supervision, or retention and face potential resulting liability should the employee endanger the safety of(fn18) and/or harm a customer, business visitor, or fellow employee.

Some state courts are split on whether an employer's failure to conduct an acceptable background investigation on an employee who subsequently injures another exposes the employer to a claim of negligent hire. For example, consider the contrasts between the Ohio cases Stephens v. A-Able Rents Co.(fn19) and Peters v. Ashtabula Metropolitan Housing Authority.(fn20)

In Stephens, without conducting any sort of background investigation, the employer hired a truck driver who had a history of illegal drug use. The driver's drug history, including use of crack cocaine, was known to his former Oklahoma employer, and a management official of the Ohio employer acknowledged that the company would not have hired the driver had it known of his history of drug use.(fn21) While making a stop at a customer's home, the driver assaulted and at-tempted to rape the customer while under the influence of crack cocaine.(fn22) The court found that the employer should have known of his drug abuse and that "consequently a reasonable jury could have found" the company's failure to inquire about his employment history prior to hire to be a causal connection and indeed may have proximately caused the attack on the customer.(fn23)

Conversely, in Peters, the employer, a subcontractor to a local housing authority, hired a tile layer to perform work in the apartment units of the housing authority. The tile layer subsequently raped a nine-year-old occupant of one of the units. The court recognized that the subcontractor had a duty of ordinary care and held that no facts were presented in this case to give rise to the duty of the employer to conduct a background check. Neither the housing authority nor the subcontractor had any apparent knowledge of the employee's criminal history, and the subcontractor further noted it would not have made any difference even if it had known of the criminal background before making its hiring decision as the employee's criminal history was more than twenty years old. The trial and appellate courts agreed, with the appellate court noting that the employee's criminal history was so remote in time that it could not reasonably afford a basis of liability against the subcontractor for the employee's future criminal acts.(fn24)

Successful assertion of the tort of negligent hire, supervision, and/or retention(fn25) frequently requires the plaintiff to prove elements such as the following:

(1) the existence of an employment relationship;

(2)

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