Firing of Food Network host illustrates resume fraud

Cleveland restaurateur and Iron Chef Michael Symon is set to take over as the new host of the Food Network's Dinner: Impossible series this fall. Great news for Chef Symon and Cleveland in general, but what does this have to do with employment law? According to the Cleveland Plain Dealer, the Food Network fired the show's prior host for resume fraud:

Symon is stepping in at "Dinner: Impossible" after the St. Petersburg Times revealed in early February that original host Robert Irvine exaggerated a wee bit on his resume. Like that bit about cooking for England's royal family. And being a White House chef, among other things.

Resume fraud is a big problem for employers that largely goes undetected. Some surveys show that perhaps as many as 30-40% of resumes contain intentional inaccuracies, such as lies and exaggeration about education, prior jobs, experience, and qualifications. The issues for businesses are two-fold:

1. How does one guard against hiring a candidate with exaggerated or flat-out false credentials?
2. What does one do upon finding out that an employee lied to get the job?

1. Background checks
The best way to guard against resume fraud is to thoroughly screen all job candidates' credentials. Myriad companies offer services for checking the veracity of job applicants' background information. Do your homework, though, as some companies are much better than others. Also, check with your attorney, because the Fair Credit Reporting Act has certain mandatory notice and consent requirements that could subject you to unnecessary liability if they are not followed.
Reference checks should also be part of any screening process. Ohio business should not fear accurately responding to inquiries from other business about past employees. Ohio has a statute, R.C. 4113.71, that gives employers a qualified immunity to provide job reference information. An employer can give a prospective employer information about an employee's job performance without fear of liability, unless the former employer knows the information is false, or makes the disclosure with the intent to mislead, in bad faith, or with a malicious purpose. The statute also has an exception for violations of the employment discrimination laws, so, for example, you can't give good references to white employees and bad references to black employees and safely hide behind 4113.71.
2. Post-hiring detection
What happens, however, if you find out that an employee lied about his or her background after that employee has already started working? Viewing this situation as "no harm, no foul" (i.e, the employee is doing a good job, so I'll overlook the resume fraud) is short-sighted. Unless a company consistently terminates employees who have been found to have lied or embellished their credentials, it likely risks a discrimination claim if and when it chooses to fire an employee within a protected class for resume fraud.
Also, a failure to consistently enforce a policy against resume fraud will limit a business's ability to use an after-acquired evidence defense. Often times, resume fraud is not uncovered until after a terminated employee sues the company and the employee's background is dissected during the discovery process. The after-acquired evidence defense permits an employer to cut-off its liability for back pay to a terminated employee at the point in time it would have fired the employee based on something learned after the employee was terminated. Thus, if it is uncovered during litigation that an employee lied about his or her background, the after-acquired evidence defense allows for the termination of back pay liability as of the date of that discovery. Unless, however, a company has a consistent policy of terminating those who lie on their resumes, it will have an uphill battle convincing a court that it would have terminated this plaintiff upon the discovery.
As with most issues in employment relations, it is best to temper expectations. Employment applications should contain clear disclosures that the employee signs off on, which states the all of the information is true and accurate to the best of the employee's ability, and that false information will disqualify the candidate from employment and subject the employee to termination. Employee handbooks should contain similar language that resume fraud discovered during employment is grounds for immediate termination. Of course, policies are only as good as their consistent enforcement.

EEOC settles landmark "cat's paw" discrimination case

When an adverse employment decision is made by a person who lacks impermissible bias, but was influenced by another individual who was motivated by such bias, is the employer liable for this rubber-stamped decision? While courts have not conclusively answered this question, the majority answer is yes. The leading case recognizing this theory of liability is EEOC v. BCI Coca-Cola Bottling Co. It famously describes this type of discrimination as "cat's paw" liability. "Cat's paw" derives from a fable in which a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another's bidding.

Last week, the EEOC reported that it settled with BCI on behalf of Stephen Peters, the African-American employee on whose behalf it sued, for $250,000. BCI fired Peters back in 2001. The district court had found that the managers who actually fired Peters did not even know that he was black. The appellate court, however, concluded that a jury could reasonably conclude that the termination was based on Peters' race: "In making the decision to terminate ... the human resources official relied exclusively on information provided by Mr. Peters' immediate supervisor, who not only knew Mr. Peter's race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace."

The "cat’s paw" theory of liability highlights the importance of employers conducting independent and thorough investigations prior to making any employment decision. Most courts that have adopted this theory of liability will not protect a decision maker's paper review of the decision without an independent investigation. Thus, instead of relying upon the recommendation of another, the actual decision maker should take such steps as interviewing the affected employee, independently interviewing other key witnesses, and personally reviewing relevant documents.

What else I'm reading this week #27

I thought it only appropriate to start this week's review with a picture from the balcony where I did a lot of this week's reading.

Anyhow, back to reality.

Wayne Schiess's legal-writing blog reports that Congress has passed something called the Plain Language in Government Communications Act of 2008. If laws start being written in plain English, what am I going to do for a living?

The Labor and Employment Law Blog provides 13 factors to consider in conducting a proper workplace investigation.

SCOTUS Blog tells us that the Supreme Court is considering taking up the scope of Title VII's religious exemption.

Law.com discusses the intersection between family-friendly workplaces and family responsibility discrimination.

Finally, BLR's HR Daily Advisor enlightens employers as to the pitfalls that await those who misclassify non-exempt employees as exempt.

Fired for not smoking

Hopefully everyone is aware that Ohio is a smoke-free state. With limited exceptions, it is illegal to smoke in any workplace within the state. Just this week, the City of North Royalton has gone one step further by banning smoking in city parks and recreation areas. For those who are interested, Wikipedia has a current list of all smoking bans around the country.

Life at Work, an excellent blog written by New Zealand employment lawyer Andrew Scott-Howman, has a story that illustrates the dramatic differences on this issue between the U.S. and parts of Europe:

The owner of a small company in Germany fired three workers because they were not smokers. It seems that their boss (evidently a smoker himself) felt that they were "disturbing the peace" in the workplace by being vocal about their smoking colleagues. "I can't be bothered with trouble-makers," said the boss. "We're on the phone all the time and it's just easier to work while smoking. Everyone picks on smokers these days. It's time for revenge. I'm only going to hire smokers from now on."

Under Ohio's SmokeFree Workplace Act, the German employer would almost certainly be liable for the terminations. The SmokeFree Workplace Act, makes it illegal for any employer to "discharge, refuse to hire, or in any manner retaliate against an individual for exercising any right, including reporting a violation, or performing any obligation under this chapter." One such right employees enjoy is the right to demand that a co-worker stop smoking.

As an aside, it's generally a bad idea to justify any workplace action as "revenge."

Companies should consider putting these anti-retaliation guarantees into their smoke-free workplace policies. If you don't have such a policy in place, give serious thought to having one drafted for you.

[Hat tip: Workplace Prof Blog]

Employment of teenagers brings new harassment headaches for employers

[A]n employer can avoid liability under Title VII for harassment (on a ground, such as sex, that constitutes a form of discrimination that the statute forbids) of one of his employees by another by creating a reasonable mechanism by which the victim of the harassment can complain to the company and get relief but which the victim failed to activate....

The mechanism must be reasonable and what is reasonable depends on "the employment circumstances," ... and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet....

An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.

Such was the guidance given by the Court in EEOC v. V & J Foods, a case that involved allegations of sexual harassment by a teenage fast food employee. The key takeaway from this case is that there is no one-size-fits-all harassment policy. Policies must be tailored to the workforce, and differences in English proficiency, education level, and age could make for different policies, not in content but in language. The policy must be written so that the lowest common denominator in your workforce understands it and can use it.

The latter category, age, is especially important this time of year as we enter the summer hiring season. The ABA Journal points out that teen EEOC sexual harassment charges have risen 8%, while overall sexual harassment charges have actually fallen 15%.

Whether or not a company employees teenagers, these issues illustrate the importance of reviewing current sexual harassment policies for clarity and understanding. It is not enough to assume that all of your workers will understand the mechanisms that you have put in place for employees to make harassment complaints. The problem, however, is that a company might not know that its mechanisms have failed until it is sued. To combat these problems, companies should consider the following:

1. Including provisions in harassment policies that require employees to contact a supervisor, manager, HR, or someone else in a position of authority at the company if they don't understand the policy.
2. Creating multiple avenues for employees to make complaints - such as a phone number, email address, and more than one specific person within the company.
3. Placing the onus on the employee to keep complaining if they don't get a response from the company.

Taken together, these suggestions will make it harder for an employee to claim she did not understand the policy, she did not know who to complaint to, she did not feel comfortable with the person designated to receive the complaint, or that her complaint was ignored.

Why I'm a management-side lawyer

In responding to my piece from yesterday on Colorado's just cause initiative, Professor Paul Secunda at the Workplace Prof Blog had this to say:

I don't believe that employers only fire employees usually for good reasons. I guess that is why Jon is still a management attorney and I no longer am.

Paul's comment got me thinking -- why am I a management attorney? Let me try to answer it this way.

I'm not so naive to think that businesses only fire people for good reasons. Companies fire people for lots of reasons -- good, indifferent, and unlawful. In a perfect world, discrimination, retaliation, and harassment wouldn't exist. But they do, and companies, even those with the best of intentions, run afoul of the complexities of our myriad employment laws. Every lawsuit, administrative charge, and internal complaint is an opportunity for a company to learn from a mistake, whether legal or inter-personal. It's an opportunity to train employers how to handle an employee relations problem better the next time.

I say that mistakes can be legal or interpersonal because lawsuits don't necessarily happen because an employee was discriminated against. Lawsuits happen because people feel disrespected, unappreciated, or that they were just plain treated unfairly. It's my job to make sure that employers understand this dynamic. When that dynamic fails, it's my job to help employers get it right the next time.

In a perfect world, I'd never get a call that a client has been sued. In a perfect world, companies would call me once a year to give their HR practices a full review for compliance with the latest and greatest laws and court decisions. In a perfect world, companies would budget for proactive help, and understand that a small amount of legal fees spent upfront would save a mess of headaches and a huge legal bill later. Life, however, is far from perfect, and often I am only called when the summons arrives. While I love the thrill of the battle that litigation presents, it's the satisfaction I get from helping clients fix their problems so that they get it right the next time that motivates me to do my job everyday.

Protecting employment at-will

At-will employment is one of the hallmarks of American employment law. "Under the employment at will doctrine, either party to an employment relationship may terminate the employment at any time, with or without cause, for any legal reason or for no reason at all." Craddock v. Flood Co. One notable exception to this general rule are terminations that violate the discrimination laws. Others include terminations that breach express or implied contracts, or terminations that violate public policy. The touchstone of at-will employment is that an employer does not need just cause to terminate an employee.

In Colorado, labor unions are trying to change the rules. The Rocky Mountain News reports that a coalition backed by labor organizations is trying to get a constitutional amendment on the November ballot that would eliminate Colorado's at-will employment system and require just cause for all terminations. Under this "just cause" initiative, employers would be restricted from firing or suspending an employee unless the employer can prove incompetence, policy violations, willful misconduct, conviction of a crime involving "moral turpitude," employer bankruptcy, or economic circumstances that provide for layoffs of 10% of the workforce.

This measure is exactly the type that could gain popular support, and would alter the landscape of employer/employee relations in this country if it catches hold. It's not so much that it will restrict reasons for termination, although that would be a problem. Most businesses (or at least those that want to retain good employees) do not terminate arbitrarily, but only for a good reason. This law would put a premium on having well-defined employment policies on which employers could hang a "for cause" termination. The more troubling aspect of this proposal is that it places the burden on employers to prove just cause, as opposed to employees to prove that a termination was not justified. In the typical employment case, proving unlawfulness (such as discrimination) falls on the employee. If this law passes, terminations will be presumed unlawful unless the employer can prove otherwise. For the sake of businesses everywhere, let's hope that this proposal dies a quick legislative death, and does not catch on and begin to spread. [Hat tip: Point of Law]