What should you do if an employee lies about a criminal conviction on his or her application?
In a recent opinion, the court held that an employer isn’t liable for discrimination in firing an employee for lying about his criminal record. However, if the employer refuses to reinstate the employee based on assumptions regarding his past mental illness, rather than the original dishonesty offense, the employer may run afoul of the Americans with Disabilities Act (ADA).

Josephs v. Pacific Bell: When Joshua Josephs applied for a service tech position at Pacific Bell Telephone Co., he indicated he had never been convicted of a felony or misdemeanor. After Josephs was hired for the position, which required him to install and repair phones unsupervised in homes, PacBell discovered he had been found not guilty by reason of insanity for attempted murder 15 years earlier. He spent several years in a state mental hospital as a result. Three years later, Josephs had been convicted for a misdemeanor battery on a police officer. PacBell discharged Josephs for fraudulent entries on the job application and withholding information, which violated the company’s code of conduct.

PacBell then refused Josephs’ application for reinstatement, even though it had previously reinstated other employees who lied about their criminal records. They claimed that Josephs’ situation was different because Josephs had spent time in a "mental ward," and they were worried he might "go off" on a customer. Josephs sued PacBell, alleging that the failure to reinstate him due to his mental disability was a violation of the ADA.

What the court said: Although it was lawful to terminate Josephs for dishonesty on his application, PacBell was held liable for discrimination in refusing to reinstate him based on assumptions about his mental disability.

• An employee can state a claim under the ADA for failure to reinstate, even if the initial discharge was legal.
• PacBell considered Josephs unfit for any job in the company, not just jobs requiring access to customers’ homes.
• Josephs’ past violent acts did not make him automatically unqualified for the job, since he had a good performance record in a similar position at another company for the past 10 years.
• While an employer may refuse to employ someone based on a history of violence if that person poses a direct threat to others, PacBell did not assess the risk of harm that Josephs posed in this situation.
• PacBell did not have any written policy prohibiting employment of individuals who committed violent acts, and had in fact reinstated a service tech who had a felony domestic violence conviction.

What you can do:

• Don’t rely on assumptions or stereotypes: Make an individual assessment of the situation, and have a professional evaluate the person’s fitness to perform the job. Be sure to provide the evaluator with a detailed job description, including any psychological and safety requirements.
• Be consistent: If your company has a policy prohibiting employment of individuals who have been convicted of crimes, be sure to apply it consistently.
• Conduct background checks: Be sure to obtain the results before allowing any new hires to start work. (See next month’s Employment Law Bulletin regarding how to legally conduct background checks.)

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.

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