Oh, What A Tangled Web We Weave: Resume Fraud As A Defense To Employment Claims

In an increasingly competitive job market, job-seekers are

quick to take whatever steps they can to present themselves as

qualified and attractive candidates to employers. Although

there is no agreement on the prevalence of resume fraud, with

the proliferation of websites geared to assisting job

applicants in strategically "embellishing" their

resumes, it is no surprise that job application fraud and

resume fraud have risen dramatically in recent years. Employers

need to address this type of fraud not only because poorly

qualified employees can cause a loss of productivity and

efficiency in the workplace, but also because of the wasted

expenditures associated with recruiting and hiring such

candidates. Moreover, if employers do not thoroughly verify the

information contained on resumes and job applications, it may

only be in later litigation, if ever, that they will uncover a

fake master's degree, falsified management experience, or

an undisclosed felony.

Once resume or job application fraud has been discovered,

what impact can this discovery have on an employer already

embroiled in litigation with a former employee? Can employers

use an employee's resume or job application fraud as a

defense to an employee's claims? In May of 2008 the New

Jersey Supreme Court provided some answers to the question,

holding in a 7-0 decision in Cicchetti v. Morris County

Sheriff's Office that despite failure to disclose an

expunged criminal conviction on his employment application, a

sheriff's officer could pursue discrimination and hostile

work environment claims against his employer.1 Case

law prior to Cicchetti appeared more generous to

employers and suggested that an employee's resume fraud

could be used by an employer as a full defense to the

employee's employment-related claim. Cicchetti,

however, substantially limits the ability of employers to use

employee resume fraud as a defense, yet provides that evidence

of resume fraud may nonetheless be used to limit damages

available to the employee.

In Cicchetti, the plaintiff filed a complaint under

a state anti-discrimination statute, asserting that his

employer, the sheriff's office, was liable for

discrimination and a hostile work environment. During

discovery, the employer learned that the plaintiff had failed

to disclose on his employment application his twenty-year-old

expunged conviction despite a specific question as to prior

arrests and convictions. Relying on Cedeno v. Montclair

State Univ.,2 a prior New Jersey Supreme Court

decision, the employer moved for summary judgment and argued

that the plaintiff was barred from bringing any

employment-related suit because his undisclosed expunged

conviction disqualified him from employment. The lower court

granted summary judgment in favor of the employer, but the

appellate division reversed, rejecting the argument that the

employee's prior conviction either created a statutory bar

to holding public employment or precluded him...