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A recent study published by ResumeBuilder found that 32% of Americans admit to lying on their resumes in order to land a more lucrative job. The most common areas where candidates try to deceive potential employers are:

• Years of experience (46%)
• Education credentials (44%)
• Concealing an unsatisfactory job (41%)
• Previous Employers (38%)
• Professional credentials/achievements (33%)

As more states and cities pass laws restricting the ability of employers to conduct criminal background checks on potential hires, several recent reports highlight the importance of criminal checks and cast doubt on the wisdom of these restrictive laws.

The United States Department of Justice recently issued a report which studied the rates at which individuals convicted of crimes go on to engage in additional criminal activity following their release from detention. In thereport, the DOJ performed a 10-year analysis of individuals released from state prisons in 2008.

Job application fraud extends far beyond an applicant embellishing or completely lying on their resume in order to secure a lucrative position for which they are not qualified. Modern technology has opened new doors for fraudsters to create elaborate webs of deception through digital disinformation.  

The unemployment rate – now at its lowest since 1969 – is a contributing factor to the problem. In a tight labor market, businesses are fighting for available talent. Employers, desperate to fill open positions, speed through the hiring and onboarding process, creating opportunities for savvy applicants to cheat the system.

Class action lawsuits under the Fair Credit Reporting Act have been a major source of liability for employers with nearly 4,000 federal cases filed in 2018 and over almost 2,000 filed as of mid-August, 2019.

In the past few years, we have seen staggering, multi-million dollar awards against a number of well-known companies.  The damages flow from the failure of these employers to strictly adhere to the technical requirements of the FCRA. 

Plaintiff lawyers love the FCRA since the statute authorizes compensatory, statutory and punitive damages plus the award of attorney fees and expenses.  Technical violations are easy to prove and the class of affected individuals can become large for employers that perform significant amounts of hiring.

The hiring and retention of sexual predators by major US companies has become a central focus of the media as of late and the question to be asked is…What took so long?  Companies in a wide array of industries find themselves embroiled in a media frenzy, crushing market value, reputational goodwill and corporate culture.
 
A recent front-page article in the Wall Street Journal highlights how some law firms are allowing predators to enter the highest levels of their firms without properly vetting those individuals.  The article can be accessed here but a WSJ subscription is required.
 
The article chronicles how, after hiring a new partner, a major law firm began receiving “thank you” gifts from the female employees of the partner’s previous firm.  The article then discusses how law firms routinely fail to properly screen professional staff before exposing dangerous individuals to their employees, clients and assets.   Dollars trumping diligence is the bottom line of the story.
 
When a firm conducts proper candidate vetting, they reduce the risk of these unfortunate situations.  Not only does proper vetting prevent such people from being hired, it also shows that the firm takes their hiring process seriously.  Even if a former employer will not divulge the problems a candidate caused, a firm is in a far superior position when, in response to a reporter, they can say that they contacted the former employer who never provided a warning, versus a situation where the firm did little or nothing at all. 
 
Bringing on a high-level candidate from another firm can be sensitive and discretion is a must.  Many firms now onboard candidates with an express understanding that once hired, their employment is contingent on a check and verification with prior employers.  Such a policy will help avoid the situations now reported throughout the media and may even frighten away those characters with a checkered past who have reason to fear such an inquiry.
 

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal laws relating to discrimination in employment, has concluded that certain minority groups have higher rates of arrest and incarceration than non-members of those groups. The EEOC specifically found that the use of criminal records has an adverse impact on African-American and Latino males and the use of those records may have a discriminatory impact on employment for those groups. The commission has opined that in order to appropriately use criminal records as a screening tool, employers must be able to establish that the exclusionary item is “job related and consistent with business necessity.” Employers may be left wondering what exactly “job related and consistent with business necessity” means.

Ban-the-Box (BTB) laws continue to proliferate at the state and local level, causing more than a few compliance headaches for multistate employers. “Ban-the-Box” is a phrase originally used to describe laws prohibiting employers from placing a check box on employment applications asking if an individual has ever been convicted of a crime. However, newer laws place more significant restrictions that affect the entire hiring process beyond the initial employment application.

Wells Fargo recently agreed to settle a class action for $12 million, which arose over their process for screening candidates for employment. They are far from alone as a wave of class action lawsuits have hit companies in every sector alleging violations of federal background screening laws.

If your firm conducts pre-employment background investigations on employment candidates, you may be a ripe target for a class action lawsuit. The same holds true for your clients. Over the past few years, employers have been bombarded by class actions based upon technical violations of the federal Fair Credit Reporting Act (FCRA) relating to their employment screening programs. A recent article from the law firm Porter Wright declared that in the class action context, “FCRA is the new FLSA!”

Perry Mason had Paul Drake. Benjamin Matlock had Tyler Hudson.
Both in Hollywood and real life, a trusted investigator can be a lawyer’s best friend.

Attorneys appreciate the power of information. Whether in the courtroom, the boardroom or the conference room, lawyers with superior information will outperform their less informed counterparts.

However, since the time that Perry Mason tried a case each week for over a decade, the investigative needs of the legal profession have changed dramatically. While the local gumshoe detective delivered the winning evidence in times past, law firms today need a diverse, technologically advanced investigative firm with national and even worldwide capabilities.

Using social media to screen job candidates has become a hot topic of discussion. Some employers utilize the services of a background screening company while others do it themselves on a formal or even informal basis. Before delving into the world on a person’s online presence, an employer should be cognizant of the risks in performing these searches.

The candidate’s credentials were outstanding. Undergraduate and graduate degrees from a prestigious university. He presented an exceptional work history. He had a clear criminal record in the area where he claimed residence. There was just one problem. It was all a lie.