by Jason Morris

Another reason to make sure your employment screening program is solid.  Its very important to ensure when doing an employment background investigation, your efforts are consistent and compliant.

Resume Fraud Discovered After The Fact Does Not Bar N.J. State Law Discrimination Case

The N.J. Supreme Court issued an important employment law case, Cicchetti v Morris County Sheriff’s Office, ___N.J.___(May 28, 2008). In a 50 page slip opinion involving a matter of first impression, the  Court held that “after-acquired evidence of resume fraud” will not bar a workplace discrimination claim or limit emotional distress or punitive damages under the New Jersey state anti-discrimination statute. Accordingly, a sheriff’s officer who failed to disclose an expunged conviction was not prohibited from pursuing his discrimination based claims. However, the court also indicated that evidence of the conviction can be used to limit or potentially eliminate economic damages, including claims for back pay and front pay if that information would have resulted in the employee’s discharge. The court basically followed McKennon v. Nashville Banner, 513 U.S. 352 (1995). As the court reasoned:

Rather, we conclude that, to the extent that plaintiff seeks an award of economic damages, including backpay and front pay, the McKennon analysis governs this dispute. That is to say, if the defendant employer can bear its burden of proving that it would have terminated plaintiff as soon as it learned of this expunged conviction, then that date may be used to limit any backpay award and to eliminate any front pay award. Finally, however, regardless of whether defendant would have fired plaintiff upon learning of the expunged conviction, plaintiff is entitled to pursue his hostile work environment claim and to recover the full measure of his non-economic damages including, if appropriate, a punitive award. For these claims, the public policy considerations expressed by our Legislature in our antidiscrimination statutes weigh heavily in favor of permitting plaintiff to have his day in court. The principles we further through the LAD demand no less.

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Tags: NJ Supreme Court

This entry was posted on Tuesday, June 17th, 2008 at 8:48 am and is filed under Blog Roll, Legislation Articles. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.