Nonprofit employers are entitled to hire and employ individuals
based on information that is both accurate and truthful. Such
information permits the organization to safeguard its interests by
hiring individuals who are capable of performing the jobs for which
they are hired, thereby advancing the interests and mission of the
nonprofit. Indeed, hiring individuals based on inaccurate
information may expose a nonprofit to negligent hiring claims and
even damage a nonprofit's reputation—as we saw in the
recent controversy surrounding the now-resigned (volunteer,
elected) president of the Spokane, Washington branch of the NAACP.
Of course, the president was not an employee of the nonprofit, but
the case is a good reminder of these risks in the employment
setting. Even in the case of a nonprofit volunteer leader, similar
cautions apply, albeit with far less legal risk.
Nonprofits should take steps to protect themselves from potential
harm resulting from employee applicant-provided false or misleading
information. In addition, when faced with an applicant or an
employee who has provided inaccurate information during the hiring
process, a nonprofit should carefully assess the significant
potential legal risk associated with possible responses before
taking action.
A nonprofit can protect itself from the liability risks stemming
from inaccurate applicant-supplied data by including on its
employment application—and any other document on which the
applicant is responsible for listing information—an
acknowledgment signed by the applicant that the information
provided is accurate and that any falsification, misleading
information, or omission can result in disqualification from
further consideration for hire or immediate termination of
employment. This signed acknowledgment not only puts applicants and
employees on notice that there are consequences of providing
inaccurate information, but it also sets forth the nonprofit's
policy regarding the provision of false or misleading information
or omissions. Such a written policy can be useful in defending
against potential unlawful disqualification or termination claims.
In addition, nonprofits may consider performing background checks
to verify applicant data, but because of the implications and
requirements of numerous state and federal laws, it is advisable to
seek the advice of legal counsel first.
If a nonprofit discovers that an applicant or an employee provided
false information or omitted information during the hiring process,
disqualification or termination most likely will be the
organization's desired response. Before taking any action,
however, the employer should balance the potential damage resulting
from the falsification/omission with its ability to successfully
defend against a potential unlawful disqualification or termination
claim. Specifically, the organization should assess the nature of
the falsification/omission and its potential impact on the
individual's ability to perform his or her duties and/or on the
nonprofit as a whole—the greater the negative impact, the
more likely it is that a disqualification or termination is
warranted.
For example, if an applicant falsely represents that s/he received
a college degree in a field related to the position for which s/he
applied, it is highly possible that the applicant would perform the
job duties unsatisfactorily, resulting in potential damage to the
nonprofit's reputation and interests. The high likelihood of
the applicant's inability to adequately perform his or her job
duties provides the nonprofit with a legitimate, nondiscriminatory
business reason for the disqualification, which is necessary to
defend against an unlawful disqualification claim. In such a case,
because the potential harm to the nonprofit outweighs the risk of
the applicant bringing a successful claim, a disqualification
likely would be appropriate.
In sum, to avoid potential damage to their reputation and
interests, nonprofit employers should take steps to ensure that
applicant-provided information is accurate. If, however, the
organization discovers that an applicant or employee provided false
or misleading information during the hiring process, it should
weigh the risks associated with potential responses before it takes
action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.