Written By ESR News Blog Editor Thomas Ahearn
A U.S. District Court in Pennsylvania has ruled in favor of an employer who withdrew a job offer after finding discrepancies between the criminal history found on a background check of a job applicant and criminal history information reported to the employer by that applicant. The summary judgment is available at http://www.esrcheck.com/file/McCorkle-v-Scheinker.pdf.
According to the facts of the case, when the applicant was asked during an interview for a job with the employer if he had any criminal convictions in the past ten years, he answered “Yes” and disclosed he was convicted of “stalking and harassment” while trying to gain custody of his daughter. The applicant signed an Applicant Certification form that included this language:
I understand and agree that any false, misleading, or incomplete information given in my application, interview(s), or other pre-employment questionnaires and procedure, regardless of when discovered by the Company, will be sufficient basis for my disqualification for employment or, if already employed by the Company, the termination of my employment with the Company. I agree that the Company shall not be liable in any respect if I am not hired or if my employment is terminated as a result of providing such false, misleading, or incomplete information.
The employer extended a contingent offer of employment to applicant that was “expressly conditioned upon satisfactory completion of a criminal background check, reference check, and proof of eligibility of employment.” The employer’s Employment Policy provided that:
Factors used to determine whether an applicant with a conviction is eligible for hire include, but are not limited to, the nature of conviction, length of time that has passed since the conviction, circumstances surrounding the crime, applicability of the conviction to the position applied for, references, and disclosure of the conviction on the employment application.
Upon reviewing the background check report, the employer discovered that job applicant “had omitted significant portions of his criminal history from his application” and had “been far from forthcoming.” In addition to his convictions for stalking and harassment, the applicant had been convicted of or pleaded guilty to several other undisclosed misdemeanors and summary offenses.
The employer disqualified the applicant from the contingent job offer “based upon the fact that his application was false, misleading, or incomplete.” The employer sent the background check results to the applicant and invited him to identify any errors or inaccuracies. After receiving no response, the employer sent the applicant an adverse action letter informing him that his application for employment was denied “in whole or in part” due to the background check.
Soon after, the applicant filed a complaint against the employer claiming the employer “violated Pennsylvania’s Criminal History Record Information Act (CHRIA), 18 Pa. Cons. Stat. § 9100, by revoking his contingent offer due to his misdemeanor and summary convictions that he contends were unrelated to his suitability for employment, and by failing to notify him in writing that he was disqualified in whole or in part based on his criminal history.”
In the motion for summary judgment, the employer argued that it was “entitled to judgment as a matter of law because it is undisputed that Plaintiff intentionally withheld information about his criminal history during the hiring process, in violation of Defendant’s employment policies and the terms of the offer, thereby warranting his immediate disqualification.”
In dismissing the claims by the applicant against the employer, the Court ruled: “Here, however, the undisputed evidence of record shows that Defendant did not revoke Plaintiff’s job offer because of his misdemeanor convictions. Rather, it revoked his offer because he intentionally misrepresented his criminal history on his employment application.”
The Court ruled that “the undisputed evidence of record shows that Defendant revoked Plaintiff’s conditional offer because he intentionally misrepresented his criminal history on his employment application in violation of Defendant’s employment policies. As such, the disqualification was not based on Plaintiff’s criminal history record information and, therefore, Defendant was under no obligation to comply with the CHRIA’s notification requirement.”
“This case is important to employers because it reaffirms that if an applicant lies, then an employer has no obligation to hire a dishonest person. It is sometimes referred to as the ‘falsification defense,’” said Attorney Lester Rosen, founder and CEO of background check firm Employment Screening Resources (ESR). “However, where this line of cases can become complicated is if an employer asks a criminal question that is overly broad or premature under either the EEOC guidance or a local Ban the Box rule. The outcome could conceivably be different if the applicant was forced to answer a question that was poorly written or should not have been on the application in the first place. Consequently, the ‘falsification defense’ may have its limits. This underscores the need to carefully review the application language and the employer’s process for when and how an inquiry about past criminal conduct is made.”
Rosen was one of the background screening industry consultants who helped to develop a report titled ‘Best Practice Standards: The Proper Use of Criminal Records in Hiring’ that addressed the use of criminal records of job applicants by employers during employment background checks. The organizations preparing the report included the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute. The full report is available at http://www.esrcheck.com/file/Best-Practice-Standards-Criminal-Records.pdf.
The case is McCorkle v. Schenker Logistics, Inc., the U.S. District Court for the Middle District of Pennsylvania, Civ. No. 1:13-CV-3077, October 8, 2014. The summary judgment is available at http://www.esrcheck.com/file/McCorkle-v-Scheinker.pdf. For more examples of court cases involving background checks, please visit http://www.esrcheck.com/wordpress/tag/court-cases/.