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.