New Jersey Employment Law Blog

The EEOC is trying to be helpful.

I know.  I know.  "They're the government and they're here to help us."  But this time they actually are being helpful to business.  What on earth about, you ask?  Hiring and promoting, and how to do it without running afoul of the legal web that waits to ensnare the unwary. 

The EEOC has just published a revised Fact Sheet entitled "Employment Tests and Selection Procedures."  It's a helpful discussion of how tests can be used lawfully to help screen employees for hiring and promotion. 

Among the tests discussed:

• Cognitive tests.
• Personality tests.
• Medical examinations.
• Credit checks.
• Criminal background checks.

They're discussed in the context of the commonly applicable laws:

• Title VII of the Civil Rights Act
• The Americans with Disabilities Act [ADA].
• The Age Discrimination in Employment Act [ADEA].

There are helpful (if basic) explanations of the disparate treatment and disparate impact theories of discrimination, and a list of Employer Best Practices.

Bear in mind that the EEOC Fact Sheet is not legal advice.  It should not be relied upon to provide specific answers to particular problems.  Look at it as a guide to where the pitfalls are located, not as advice on what testing you can safely perform for what position. 

In fact, reading the Fact Sheet can be sobering.  It reminds us of just how complicated the law in this area can be, and of the financial risk if you make a mistake.

So yes, the government is doing it's best to be helpful.  But in doing so it reminds us of the risks of forging ahead into a testing program without thinking through the consequences.  Which in turn brings to mind another familiar saying: "Use only under adult supervision."

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A federal judge in California has sentenced two corporate executives to significant criminal penalties for knowingly hiring illegal aliens to work at their company, after they pled guilty.   The AP reports that Judge Barry Ted Moskowitz sentenced the founder and chairman, and a manager, of Golden State Fence Co. to a combination of house arrest and community service.  He also imposed six-figure fines.

The charges against the two carried a maximum penalty of five years in jail, and prosecutors had pressed for incarceration.

Judge Moskowitz refused to impose jail time, apparently because the defendants would have been the first ever to be incarcerated for knowingly hiring illegals.  But the judge made his thinking clear:

"Prosecution is long overdue in this area," Moskowitz said. "Honestly, the government's efforts have been at the border, not with the employer. Obviously, the government has signaled a change with this case."

In other words, the next employer prosecuted might not get off so easily.

Here's what is sobering about this case for business owners and managers.  If you didn't follow the link above to Golden State Fence Co., do it now.  It's worth your time.  Two things stand out.  First, Golden State Fence is not the size of General Electric.  It's obviously not much different than tens of thousands of other small businesses in New Jersey and elsewhere around the country.  Second, read the notice at the bottom of the home page about how Golden State Fence "encourages" others in its industry to work to hire only properly documented workers.  That's a warning, possibly placed there at the request of the government as part of the plea bargain. 

In short, this could happen to anyone, and the government's enforcement policy has gone beyond the stage of a gentle slap on the wrist.  They've gotten serious.  Forewarned is forearmed.

Finally, although this case arose in the Southern District of California, it has a New Jersey connection.  Although Judge Moskowitz has been on the bench in California for many years, he is a Jersey boy and Rutgers grad.

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A few weeks ago we posted on the danger to professional service firms from failing to confirm the licensure of applicants for professional positions before hiring them.  Now comes a similar tale that reaches into the federal government and the office of the Air Force Judge Advocate general.  Stars & Stripes reports on the long-running lie lived by Col. Michael D. Murphy, "one of the Air Force's top legal eagles" and commander of the Air Force Legal Operations Agency in Washington.  He was even Commandant of the Air Force JAG School in 2005.  More background  here and here.

Col. Murphy came to the Air Force from a civilian law practice 23 years ago.  The Air Force failed to check his credentials.  If they had, they would have discovered that Col. --- then Mr. --- Murphy had been suspended for seven years from the practice of law and was later disbarred. 

In the past the Air Force has operated on a honor system regarding licensure when hiring attorneys.  Now all Air Force lawyers have until December 31 to provide "visual proof" of their good standing to practice law. 

The Air Force learned a lesson the hard way, but it also --- pardon the expression --- dodged a bullet because Col. Murphy did not represent criminal defendants.  If he had, the conviction of anyone he represented might be subject to challenge.

In New Jersey many professions require special licensure.  How many employers actually check the professional credentials of job applicants before hiring them?  Our two recent examples involve lawyers, but no profession would be immune.  How many medical practices would want to defend against a malpractice claim based upon the actions of an unlicensed physician?  How many accounting firms based upon the conduct of someone not a CPA?

It may be time to start requiring proof if you don't already.

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A large, well-respected law firm recently learned the hard way that you cannot always accept at face value the qualifications of those who apply for employment as attorneys. 

Law.com reports that Brian Valery passed himself off as a Fordham Law School graduate and an attorney admitted to practice law in New York.  He had worked for Anderson, Kill & Olick, PA since 1996.  The problem?  He never attended law school and was not admitted to the bar of any state. 

Only a telephone call to Anderson Kill from one of Valery's college friends tipped the New York firm off to Valery's deceit, according to an investigation conducted by Connecticut Chief Disciplinary Counsel Mark A. Dubois. The friend apparently couldn't find Valery's name among registered New York lawyers, but found him listed as an Anderson Kill attorney. The call raised red flags at Anderson Kill.

 The incident has caused problems for Anderson, Kill, which has engaged special ethics counsel to help it deal with the situation.

The lesson here applies to all professional service firms.  How many law firms, accounting firms, engineers, architects, and medical practices actually take the the trouble to confirm the training and licensure of those who apply for jobs as professionals?  Stories like this one come up occasionally, so while the problem is rare, it would be unwise to dismiss it as a complete aberration.  The legal ramifications of hiring someone who is not appropriately licensed can be extreme.  And the public relations issues that arise can be just as damaging to a firm's reputation.

Asking applicants for proof of their professional training and licensure is the smart thing to do. 

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