A recent Circuit Court of Appeals case holds that paid union organizers are permitted to lie on their employment applications about their status as "Salts" and about facts that might raise suspicion that they are union organizers. A "Salt" is a paid union organizer who obtains employment with a non-union firm in order to try to organize the firm's workers. The "Salt" in this case lied on his job application about why he had left his last job, so as not to disclose the fact that he had done so in order to organize the new employer's work force.
The court held that lying about the applicant's "salt" status was immaterial because the employer could not legally turn down a job applicant because he's a union organizer or supporter. The court noted that applicant's aren't protected when they lie about facts relevant to their job qualifications, but ruled that the lie about the "salt's" union involvement was not relevant because had he answered truthfully, the employer could not have used his answer to deny him employment.
The "Salt" applicant also lied on his job application about the number of traffic tickets he had previously received. He was conditionally hired pending a review of his driver's record by the company's liability insurance company. After the employee had worked for four hours, the employer learned that his driving record precluded him from being insured – a mandatory job qualification.
The employer fired him and refused to pay wages for the four hours the employee had worked, contending that, if the employee had told the truth on his job application, he would never have been hired and would, therefore, have performed no work.
The "Salt's" union filed a complaint with the National Labor Relations Board and got an order requiring the employer to pay the "Salt" for the four hours he worked between being hired and the time the company legitimately fired him based upon his lies about his driving record. The employer appealed that decision to the Court of Appeals (one level below the U.S. Supreme Court). After spending many thousands of dollars on attorneys fees, the company lost and was ordered to pay the "Salt" for four hours of work. As the prevailing party on the appeal, the Salt was also able to require the company to pay his attorneys fees in addition to its own fees. The "Salt's" union obtained, at the company's expense, a very favorable ruling which it is now free to use against other employers.
The specific facts of this case involve legal protections for union organizers, but its reasoning likely applies even to non-union employers. Under this case's reasoning, employers are not entitled to deny employment based on lies in the application process if the question concerned something the employer shouldn't have been asking about in the first place.
ADA examples should quickly come to mind. Assume a company properly asks about an applicant's ability to perform the job and is falsely assured by the applicant that he or she can perform the job's essential elements. Further assume that the company also improperly asks about the applicant's medical or emotional condition and is again falsely assured. The applicant's lie about medical or emotional issues falls squarely within the reasoning of this case. The fact that the employee lied on the application is irrelevant because the employer had no legal right to use the misrepresented facts to deny employment.
The lie about being able to perform the job raises a more difficult issue because that question was legally permissible and directly related to job qualification. The employee may win even on this issue. The employee can easily claim inadequate understanding of the job's requirements, or can claim inadequate awareness of his or her impairments. The employer's position is tainted by having improperly inquired about possible medical or emotional problems. The end result could well look a lot like the "salt's" case. The employer would have to accept the lie unless it became clear the employee couldn't do the job. In the ADA case, that determination could not lawfully be made until possible reasonable accommodations had been explored. And, yes, this means you might have to objectively discuss accommodations with someone you knew had lied to you!