- Missouri Employment Law Info Site – TimsLaw.com - http://www.timslaw.com -
Resume and Reference Problems – Generally
It’s common in employment law for there to be issues about honesty in connection with resumes or employment applications. Here are links to sections of this article dealing with some of the more common issues and why the issues arise so often in employment law:
NOTE: You can use the Missouri Service Letter Law RSMo 290.140 as a tool to see what your former employer might be prepared to say about the reasons for your termination, to help you decide how to handle the termination on future resumes.
Lawyers will give you a legal consultation about this issue and may or may not be able to help you. During the consult, the lawyer will probably look into your legal rights arising from the termination, such as those rights under the law of Wrongful Termination or even Contract Law, etc . . . Consider getting a Service Letter.
Lawyers will consult with you about this. Lawyers will be thinking about many areas of law that could be of service to you, such as Retaliation (why did the former employer lie about you?); Defamation and Slander (is the lie something the law can help with?); Discrimination (did you really not get hired because of the alleged resume lie?); and even Contract law. Consider getting a Service Letter.
Lawyers will look for many different possibilities. Go to my Articles List and start reading to get introduced to the types of things a lawyer will probably be looking for.
This is a difficult “refusal to hire” type of problem that the law may or may not be able to help with. Maybe someone else who was qualified just beat you to the punch. Or maybe you have been the victim of a form of Discrimination and you should file an EEOC or MCHR charge. You can call a lawyer and talk about it. These are tough cases, but sometimes the law can help.
This is highly suspicious and merits close scrutiny. Read the remainder of this article. Most terminations for alleged resume fraud or application fraud tend to fall into the categories I list below. Also, review my articles on Honesty Problems and Defamation and Slander to learn some of the things lawyers commonly look for. See also my article about how to use the Missouri Service Letter Law RSMo 290.140 to (in theory) learn the “true” reason for the termination.
The Company had no evil motive, but somehow it learned that the Employee committed a significant form of resume fraud, and it followed its reasonable policies and terminated the Employee. Depending on how serious the alleged fraud was, the termination may or may not be suspicious. For example, if the position absolutely requires a certification that the employee claimed to have, but did not have, then lawyers will probably not be overly skeptical about the termination. Call a lawyer and talk about it.
The Company has decided it wants to fire Employee (for reasons that are probably legitimate), but the Company fears that Employee will file a lawsuit (even if very weak), such as a case for Wrongful Termination or Retaliation or even related to an Employment Contract of some type.
The Company may feel it lacks a good enough documented reason to justify termination, so to provide itself stronger insulation against the appearance of impropriety the Company looks for excuses. The Company then picks apart the Employee’s resume with a fine-toothed comb, and finds something they can claim is a lie, and terminates the Employee. This is a “Gray Area” termination because it’s difficult to show that this conduct is illegal. If the Employer falsely claims in a Service Letter that the reason for termination was “resume fraud” then the Employee might pursue a Service Letter lawsuit based on the Company’s lie. Call a lawyer and talk about it.
Employee may have engaged in “protected activity” as I talk about in my Retaliation and Wrongful Termination articles, or the Employee has a Contract of some sort, and the Company (for reasons of legal tactics) starts looking for reasons to justify termination, so the Company picks apart the Employee’s resume with a fine-toothed comb and then terminates the Employee for resume fraud.
For example, if you file a workers compensation claim in Missouri, the Company is quite likely to scrutinize your resume looking for an excuse to fire you, which is just one of many types of illegal Retaliation.
If you make a Complaint about something legally significant, or file an EEOC charge (see Discrimination), the Company might scrutinize your resume in preparation for defending against your potential lawsuit.
If you make a Complaint about anything, the employer might start looking at your resume or job application, to find an excuse to fire you (and depending on the nature of your complaint, you might not have any protection against this form of Retaliation). Call a lawyer and talk about it.
The lawsuit can be about any employment-related dispute, such as Wrongful Termination or Retaliation or Discrimination, or for an Employment Contract – related matter, or even over Wage-related problems or Overtime pay or FMLA, etc . . .
The Company is making use of the “After-Acquired Evidence of Misconduct” doctrine (see below).
It’s important that employers have a standard policy of checking backgrounds, so that they can have uniform employment practices. Uniformly applied employment practices go far to shield employers from lawsuits or big damage awards, for many reasons. Here are a few:
Certain legal doctrines have encouraged companies to perform especially rigorous background checks when the employer needs protection against a lawsuit or needs justification for a termination.
Some years ago, the United States Supreme Court endorsed the concept of “After-Acquired Evidence of Misconduct” in the Nashville Banner case. The After-Acquired Evidence of Misconduct doctrine has snaked its way into all sorts of employment cases. It works like this, in a nutshell: The Company can sometimes avoid paying any damages (and even sometimes get a case thrown out of court) if it can show that it would have fired the employee or refused to hire the employee, if it had known of previously-secret misconduct by the employee. Resume problems of some types have been ruled to qualify as a type of misconduct under the After-Acquired Evidence of Misconduct doctrine.
In the discovery phase of lawsuits that do not settle, companies might perform fairly extensive background checks looking for reasons to argue that you lied on your resume or application, and that they would not have been hired you if you had been truthful.
The company might start looking at your resume if you make Complaints or engage in any form of “protected activity” (see Retaliation and Wrongful Termination). Depending on the circumstances, the employer might be guilty of Retaliation for scrutinizing your resume, or it might not. It gets complicated. Expect your resume or application to be reviewed if the employer perceives you as a legal threat.
For just one example of a common problem in Missouri, it’s apparently a fairly standard part of defending against workers compensation claims for companies to begin checking the resumes and employment applications of persons who filed claims. I think this practice should be illegal, as a form of Workers Comp Retaliation, but I have not had the opportunity to obtain a ruling about that from a court yet. See my Workers Comp Retaliation article for more info. The filing of a workers comp claim is just one form of “protected activity” that I also talk about in my Retaliation article. The same type of resume-scrutiny may occur in many other settings as well, whenever the company perceives you might be a legal threat.
For the curious, see The EEOC’s guidelines regarding the After Acquired Evidence Doctrine. This link is to a whitepaper where the EEOC gives its opinion about what the After Acquired Evidence Doctrine means, but courts do not have to agree with the EEOC – for info purposes only.
That’s right – your former employer will probably try to get the job applications you wrote to new employers, if you sue the former employer. Your lawyer may try to prevent this, and a big legal battle could ensue. If the former employer can get your new applications, and if you told any arguable lies to other employers, the company will try to use your alleged lies against you in court.
Among other things, the former employer wants to see if you have arguably lied to new employers about the circumstances of your termination from the employer you are suing.
Former employers know you have a very high incentive to lie to potential new employers: You need to eat and care for your family.
If the court allows the employer to get your new applications, the court might allow the company to use fibs to “impeach” or question your honesty if you testify in court.
See my article on the Missouri Service Letter Law RSMo 290.140 for info about how to use the Service Letter Law as a tool to see what your former employer might be prepared to say about the reasons for your termination.
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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