Marc Alifanz
Marc Alifanz practices in the firm’s Labor and Employment group. He has extensive litigation experience on a wide range of labor and employment matters, including discrimination, harassment, wage and hour, and traditional labor litigation. His practice also involves counseling employers on all aspects of employment-related issues. Marc is admitted to practice in Oregon, New York and New Jersey.
Despite Assertions to Contrary, Employment Laws Do Exist
On my way in to work this morning, I was listening to NPR’s Morning Edition, and caught an interview with Lewis Maltby, president of the National Workrights Institute. The interview was ostensibly to promote Mr. Maltby’s new book, “ Can They Do That?” in which he discusses employment termination cases that were deemed legal, but seem, in his opinion, to be disproportionately severe or unjust.
What Mr. Maltby appeared to decry (without using the proper terminology) is the American presumption of “at will” employment—the notion that an employer may terminate an at will employee’s employment for any reason or no reason, so long as it’s not otherwise illegal. A couple of Mr. Maltby’s examples demonstrate that concept well. For example, he mentioned instances where it was permissible for an employer to terminate an employee based on the political bumper sticker on the employee’s car, and for a school to terminate an overweight teacher’s employment because the teacher did not project the correct image. As there are no laws that specifically protect individuals from discrimination based on political affiliation or weight, these terminations were in fact permissible. (I would caution, of course, that terminating an overweight employee does carry risk to the extent the employee might be considered to have a disability under state or federal law.)
Continue Reading...Supreme Court to Decide Title VII Statute of Limitations Question
The U.S. Supreme Court agreed yesterday to hear a challenge to a Seventh Circuit Court of Appeals decision in a case with similar factual overtones to the Ricci case decided earlier this year. Like Ricci, this case involves a firefighter qualification test that had a disparate impact on black applicants; unlike Ricci, at issue here is the statute of limitations on a Title VII claim.
In this case, Lewis v. City of Chicago, the plaintiffs are a group of approximately 6,000 black firefighter applicants who filed charges of race discrimination with the EEOC more than 300 days after the initial announcement of their test results, but within 300 days of the hiring of the new firefighter class from which they allege they were denied consideration. The trial court held that the hiring of each new firefighter was a new violation of Title VII, so the EEOC charges were timely filed. On appeal, the Seventh Circuit reversed, holding that the “discrimination was complete when the tests were scored...and the applicants learned the results.” At issue for the Supreme Court is whether the limitations period for a Title VII claim begins to run when an employer announces the results of a test that could violate Title VII’s disparate impact provision, or if the right to sue begins only once the employer has acted on that policy.
At face value, it seems that the trial court probably got this one right and the Supreme Court should reverse the Seventh Circuit. How can an employee know what the actual disparate impact will be until the employer’s hiring decisions are actually made? If, for example, the employer’s business needs ultimately dictate that it need hire nobody, there has been no harm done regardless of the results of the test. An actual harm needs to occur before the right to sue accrues. Notwithstanding that analysis, and given the current makeup of the court, however, it is unclear which way the Court will go on this one. The World of Work will let you know when a decision is reached and how that decision may impact your workplace.
Professional Fibbers Unmasked! Fake Job Reference Sites Are Real, But What is the Cost?
Last week The World of Work posted about fake job reference site Alibi HQ and provided some pointers for employers on how to verify the legitimacy of job references provided by job applicants. Given that the site has numerous broken internal links, we speculated that it may be a joke. It's not. Picking up on our blog post, ABC News investigated Alibi HQ and competitor CareerExcuse.com (a site that also purports to provide fake job references) to determine whether the services provided are real, and sought comment from us regarding the legality of lying on employment applications.
The results of their investigation are fascinating.
CareerExcuse.com's founder, William Schmidt, confirmed for ABC News that his service is real, and that it has "helped at least 20 people find work" by providing false job references. Alibi HQ boasted that business has quadrupled in the current recession, but was somewhat more circumspect about the details of the company (they also provide fake landlord references and fake doctor's notes), refusing to identify the company's location because to do so "poses a security risk." Both companies appear aware that their services tread on shaky legal ground. Each purports to take steps to avoid liability such as not providing references to government job applicants. That's wise because lying to the government runs afoul of federal criminal law, and can carry with it up to 5 years in prison.
But what about lying to private employers? Are the lies promulgated by these companies somehow protected because the target of the lie is a private, rather than a public, entity? As I stated in the ABC News article, I think not. If a company relies on the misrepresentation of an applicant and is later damaged by that misrepresentation, it very well may constitute actionable fraud.
The companies acknowledge that their services are based on "fibbing" and that they have some "moral issues." They argue, however, that the means are justified by the end--finding someone a new job. Some commentators take the same position, arguing that these services level the playing field between the jobless and the "evil" employers. It's not that simple. Putting aside the obvious moral and ethical issues related to lying, there is a social and economic cost. These services don't just put someone in a new job; they falsely puff up an applicant's experience to help get her get a job for which she is not qualified. That's bad for the applicant who is ultimately found to be unqualified for the job, and costly for the duped employer. Far from leveling the playing field, it creates an unfair advantage over the honest applicants with actual experience who get passed over for a position because of someone who lied.
Our advice to employees: These are tough times and we know that finding a job is hard. Still, maintain your integrity and steer clear of services like these and overt resume puffery. Hang in there!
Our advice to employers: As noted in our prior post, when considering an applicant, take the time to diligently review prior job references and history to verify that the applicant has the experience he or she has advertised.
Fake Job Reference Site Highlights Importance of Verifying Applicant References
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As if navigating the world of employment issues was not hard enough already, today's Consumerist highlighted a new service that purports to provide, among other things, fake job references. While I have not formed a conclusion as to whether the site is real or a sham (many of the internal links on the site don't work, but there is an actual recording identifying the company when you call the number), such services--the sole function of which is to perpetrate a fraud--highlight the importance of verifying the authenticity and experience of applicant references.
If you are suspicious about an applicant's job history or references, there are several steps you can take decrease your chances of being duped.
- First, if the company name is unfamiliar to you, look it up online. Is there a website? Can you find a phone number? If so, call it and ask to speak to someone who covers the human resources function. It is, of course, possible to fake all of these things (and a service like the one linked to above is paid to cover them), but chances are that someone who is lazy enough to fake a job reference isn't going to cover all of his or her bases.
- Second, don't rely on the information provided. If the applicant states that he or she worked at a major corporation and provides the number for someone to contact at the corporation, don't call the number. Instead, go to the website, call the main number, and ask to speak to the person in the reference. If that person doesn't exist, it's a good sign that the reference is not legitimate.
- Third, as the Consumerist post notes, make use of services provided by the phone company such as reverse lookup. The number may not show up for a legitimate reason (such as it's a direct dial line), but the failure to authenticate should still be considered a reason to proceed with caution.
- Fourth, if you are instructed to contact a reference at home that's fine, but try to otherwise authenticate the reference as discussed above.
- Fifth, you may want to include a policy in your handbook indicating that subsequent discovery of false information on an employee's application is grounds for immediate termination.
Once you verify that the reference is legitimate, be mindful that all references were not created equal. Make sure to establish that the reference interacted with the applicant in significant ways or over a substantial period of time. Many applicants provide otherwise legitimate references who, for example, left the prior employment long before the applicant did. Those references are less likely to have any useful information, and won't be able to discuss why the applicant left the prior employer.
Many employers don’t check references at all, or just do a cursory review. The lesson here is that due diligence checking references can go a long way toward avoiding significant problems down the road.
LinkedIn Debate Highlights Broader Issue of Inflated Performance Evaluations
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Recently, an interesting debate has erupted in the employment law blogosphere over this National Law Journal piece cautioning employers about the risks posed by making recommendations on LinkedIn -- a social networking website for professionals. The perceived danger scenario is where a manager “recommends” the work of a subordinate, who is later terminated for poor performance. The former employee then sues, and uses the manager’s “recommendation” as evidence that the stated reason for the termination (poor performance) is a pretext. The debate over this issue centers on the true risk to employers of LinkedIn recommendations—some say the risk is real; others that it is overblown.
Our good friends Molly DiBianca of the Delaware Employment Law Blog and Daniel Schwartz of the Connecticut Employment Law Blog argue that the risk is overblown. First, they point out that this scenario has played out in exactly zero cases to date. Second, because managers are extremely unlikely to recommend poor performers, this scenario is unlikely to occur frequently. Jon Hyman of the Ohio Employment Law Blog and Patrick Smith of the Iowa Employment Law Blog disagree and argue that employers should be concerned about such recommendations because people tend to be careless on the internet, and a LinkedIn recommendation can provide a crushing blow to the employer’s chances of prevailing on summary judgment in litigation.
So who’s right?
Continue Reading...Ricci v. DeStefano -- Supreme Court Holds City Violated Title VII By Rejecting Racially Disparate Test Results
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To end its term, the Supreme Court today issued its long awaited opinion in Ricci v. DeStefano--a case that has received extra media attention because Supreme Court nominee Sonia Sotomayor was on the Second Circuit Court of Appeals panel that decided the case below. The conservative justices on the Court reversed the Second Circuit (and by extension, Judge Sotomayor) in a 5-4 decision, ruling that the city of New Haven violated Title VII by discarding the results of a firefighter promotion test where white applicants fared disproportionately better than other applicants. As one might expect, Justice Kennedy provided the swing vote and authored the majority opinion.
New Haven used the test in question to identify firefighters best qualified for promotion. Despite being objectively administered, the test's racially disproportionate results led the city to question whether it should validate the results. The city, of course, found itself in a "damned if you do, damned if you don't" position: certify the test results, and face Title VII disparate impact litigation from minority applicants; fail to certify them, and face Title VII reverse discrimination litigation from the white officers who passed but were denied a promotion. The city opted for the latter course, and, as expected, the white firefighters filed a reverse discrimination lawsuit. The city prevailed on summary judgment at the district court level, and the Second Circuit affirmed.
The Supreme Court found that discarding the tests violated Title VII , while certifying the test would not have been a violation of law because there was no "strong basis in evidence" for believing that the black firefighters would prevail on a disparate impact claim. The court noted that despite what otherwise would have constituted a "prima facie" showing of disparate impact race discrimination, several defenses were available to the city--namely that the exam at issue was job related, consistent with business necessity, and there existed no equally valid, less discriminatory alternative that suited the city's needs but was not adopted. The four dissenting justices disagreed, arguing that the majority's analysis was flawed because "New Haven had ample cause to believe its selection process was flawed and not justified by business necessity."
Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don't be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.
City of Bozeman Reverses Course, Stops Asking for Social Media Passwords
In a new development on yesterday's story, the City of Bozeman, Montana must have been listening to the cacophony of criticism from privacy and employment lawyers alike relating to its new policy asking job applicants for their username and passwords for social networking sites such as Facebook and MySpace.
The Billings Gazette reports that the Bozeman City Commission has voted to abandon the policy, which one commissioner called an "egregious violation of privacy." Interestingly, the policy has been in place for well over a year, but nobody bothered to look closely at the privacy or employment law implications until the media picked up on the story.
Given that most HR professionals wouldn't dream of asking applicants about the kinds of information easily found on social networking sites (even without needing a password), this reversal of course falls in the "better late than never" category of HR decisions.
