What To Do With a Dishonest Job Application

What can employers in Pennsylvania do when a candidate has made misrepresentations on his/her job application? Specifically, what can employers do when a candidate has omitted a felony or misdeameanor?

Misrepresentations on Employment Application

District Courts in Pennsylvania have held that refusing to hire an individual based on misrepresentations made on an employment application is a legitimate and non-discriminatory reason under the law.  In other words, it is not discrimination when an employer refuses to hire an employee based on dishonesty on a job application.

 In fact, the Eastern District found that the employer was within its right to terminate an employee based on “misrepresentations about his criminal record and work history made on his job applications.” 

 Refusal to Hire Based on Convictions

Section 9125(a) allows for employers to use information included in an applicant’s criminal history record for the purposes of deciding whether or not to hire the applicant.

Next, §9125(b) provides that “felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the suitability for employment in the position for which he has applied.” 

The Employer must notify the applicant in writing if the candidate is not hired, and the the decision was based in whole or in part on the criminal information.  The written notice must inform the candidate that his/her criminal record was a bases for the employment decision.  18 Pa.C.S.A. §9125(c).

NOTE:  Employers cannot make an employment decision on a “mere arrest.”  Employers in that situation face potential monetary damages.  However, the EEOC has issued a guidance that employers may assess the conduct underlying an arrest when making an employment decision. 

 SUGGESTED ACTION:

  • The individuals reviewing the candidate’s application and ensure that the candidate has the requisite qualifications for the job. If the Candidate is not qualified for the position, then that alone is reason to not hire the individual.

  • The misrepresentations alone are sufficient for not hiring the individual. It is legitimate grounds for termination/refusal to hire if the applicant represented that s/he had never been convicted of a crime, when in fact she had. If there is a legitimate misrepresentation relating to his/her criminal background and/or employment background, Employers should cite this as a reason for the refusal to hire.

  • Review the actual convictions. When making an employment decision based on a criminal conviction, it is important that the employer have a “legitimate public objective” for the refusal to hire. Employers must document their reason for not hiring this applicant and explain the legitimate public interest in not hiring the individual. Below is the rational that must be documented:

    • Outline nature of the position the applied for. Include the duties and obligations.

    • Identify the convictions.

    • Explain the legitimate public interest of the Employer, and how the conviction affects the legitimacy of the company and the position.

 

 

 

 

Susie Cirilli