Ten Signs an Applicant is a Lawsuit Waiting to Happen

Catch the danger signals that allow you to avoid the problem altogether.

EMPLOYEE lawsuits often will catch companies by surprise. Often, though, a worker's application is a tip-off that the employer is hiring a lawsuit that's just waiting to happen. By looking for these 10 danger signals, an employer can avoid hiring a problem in the first place.

  • The applicant does not sign application. An applicant with something to hide may purposely not sign the application form so he cannot later be accused of falsification.
  • The applicant does not sign consent for background screening. When a firm uses an outside agency to perform screening, federal law requires a separate disclosure and consent. A background consent form protects employers in two ways: It discourages applicants with something to hide and encourages candid interviews. A firm that does not perform some sort of screening becomes the employer of choice for problem applicants. If a candidate fails to sign the consent, that is not a good sign.
  • The applicant leaves criminal questions blank. An applicant with a past problem simply may skip the questions about criminal record. Every employment application should ask, in the broadest terms allowed by law, whether the applicant has a criminal record. Many jurisdictions permit questions about only convictions and pending cases.
  • Employers make a big mistake if they only ask about felonies because misdemeanors can be extremely serious. Although a job applicant cannot be automatically rejected because of a criminal conviction, an employer may consider the nature and gravity of the offense, the nature of the job, and how long ago the offense took place when evaluating whether there is a sound business reason not to employ someone. If an applicant lies about a criminal record, the false application may be reason enough to deny employment.
  • The applicant reports a criminal violation. Just because an applicant reports one offense does not eliminate the possibility there are other offenses. It is also possible that she reported it in a misleading way to lessen the seriousness of the crime. Employers should always check it out.
  • The applicant fails to explain gaps in employment history. It is critical to look for unexplained gaps. There can be many reasons for gaps between jobs, but if an applicant cannot account for the past seven to 10 years, that can be a red flag.
  • The applicant fails to give sufficient information to identify a past employer for reference checks. If an applicant does not give enough details about past employers, that can be a sign of trouble. Verifying past employment is an important tool for safe hiring.
  • Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even if a reference check only reveals dates of employment and job titles, this information can eliminate employment gaps.
  • The applicant fails to explain reason for leaving past jobs. Past job performance can be an important predictor of future success.
  • The applicant's explanations do not make sense. A careful review of employment gaps and reasons for leaving past jobs is needed. Anything that does not make sense must be cleared up in the interview.
  • You see an excessive number of cross-outs and changes. This can be an indication that a prospective employee is making things up as he fills out the application.
  • The applicant fails to indicate or recall the name of a former supervisor--another red flag. Past supervisors play an important role in conducting past employment checks.

What If You Don't Use an Application Form?

These danger signs assume employers use an application form. Some employers put their firm at risk by just using resumes. However, using an employment application is considered a best practice. Resumes are not always complete or clear.

Applications ensure uniformity and all needed information is obtained. They also protect employers from receiving impermissible information a resume may contain, and they provide employers with a place for applicants to sign necessary statements that are part of the hiring process.

This article originally appeared in the January 2003 issue of Occupational Health & Safety.

About the Author

Lester S. Rosen is an attorney at law and founder of Employment Screening Resources, www.ESRcheck.com, a national background screening company located in Novato, Calif. He is a consultant, writer, and frequent presenter on the Fair Credit Reporting Act (FCRA), pre-employment screening and safe hiring issues. He is a certified specialist in criminal law in California, a former deputy district attorney and defense attorney, and has taught criminal law and procedure at the University of California Hastings College of the Law. He has qualified and testified in court as an expert in the area of safe hiring and pre-employment background screening.

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