Ten Signs an Applicant is a Lawsuit Waiting to Happen
Catch the danger signals that allow you to avoid the problem altogether.
- By Lester S. Rosen
- Jan 01, 2003
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
- 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
- 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
- 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
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.
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.