Getting caught in résumé fraud can have legal consequences

In 2017, CareerBuilder surveyed more than 2,500 U.S. employers across industries and company sizes about résumé fraud, including 221 human resources managers in the private sector. About 75 percent of hiring managers reported catching applicants in a lie. One applicant claimed to be an anti-terrorist spy for the CIA at the same time he was in elementary school.

Lies identified in a previous CareerBuilder survey included claiming membership in the high IQ society Mensa, listing a degree from a nonexistent school, and pretending to be a Kennedy.

Résumé fraud has been in the news lately with revelations that first-term Congressman George Santos of New York lied in the course of his campaign — an extended job interview of sorts — about his educational and work history, among other things. Santos faces serious consequences from his misrepresentations.

Getting caught lying on a résumé is, at minimum, embarrassing and may derail a career. There also may be legal consequences. This column focuses on one of them.

Résumé fraud will not entirely bar claims against a former employer

Résumé fraud is most commonly uncovered in the course of a lawsuit a person brings against their former employer after being fired. The law calls this post-termination discovery of information “after-acquired evidence.”

In 1994, the California Court of Appeal in Cooper v. Rykoff-Sexton, Inc. addressed the issue. Gary Cooper claimed that, in firing him, Rykoff-Sexton had breached his employment contract and discriminated against him because of his age. During the litigation, Rykoff-Sexton learned Cooper had left off his job application that he had been fired from two previ

ous jobs for misconduct. The company said Cooper never would have been hired had it known of these misrepresentations.

The court of appeal ruled Cooper’s résumé fraud did not bar his claims. “Although résumé fraud is a serious social problem, so is termination of employment in violation of antidiscrimination laws or in breach of contract. Automatic forfeiture of all employment rights regardless of the circumstances can be too harsh a penalty in many cases.” The court noted that the effect of résumé fraud on the former employee’s damages was not an issue in the case.

After-acquired evidence may limit a former employee’s damages

Twenty years later in Salas v. Sierra Chemical Co., the California Supreme Court addressed the impact of after-acquired evidence of applicant misrepresentations on the damages a plaintiff may recover from their former employer. In the Salas case, Vicente Salas claimed Sierra Chemical had unlawfully handled his work-related back injury. Sierra Chemical learned during litigation Salas had submitted a false Social Security number and card to get employment and was unauthorized to work in the United States.

As in the Cooper case, the state Supreme Court concluded such after-acquired evidence of applicant fraud does not bar a former employee’s claims. The court also held, however, that later-discovered applicant misrepresentations may limit a former employee’s recoverable damages if the employer can prove discovery of the misinformation would have led the employer to reject the employee’s application or fire them immediately.

Generally, said the court, the employee will be unable to recover any compensation for the loss of his job for the period after the employer discovers evidence of the employee’s wrongdoing. “When the employer shows that information acquired after the employee’s claim has been made would have led to a lawful discharge ... remedies such as reinstatement, promotion, and pay for periods after the employer learned of such information would be inequitable and pointless” because such remedies would cover a time after the employer lawfully would have fired the plaintiff.

Conclusion: Résumé fraud a risk with serious consequences

Résumé fraud carries potential legal consequences when it is exposed, including civil and criminal liability resulting from especially serious fraud. But there is a nonlegal consequence for nonpsychopaths that doesn’t depend on exposure: the perpetual anxiety of working while waiting to be exposed.

Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at SDSU where he teaches business ethics and employment law.