DennisBeaverJanuary 11, 2014 • By Dennis Beaver

Last week we told you about David, an attorney who asked an employment agency to find a part-time receptionist.

Shortly thereafter, a job counselor phoned, stating that she had “the perfect candidate,” and emailed her resume.

Two hours and several phone calls later, a very disappointed David called the counselor, stating:

“Your perfect candidate is perfect! She’s perfect at resume fraud.

“It is filled with lies. I assumed that you would only send a resume after confirming its accuracy. Your website claims that you check references and are highly selective.

“But you didn’t verify a thing about this person! Am I right??”

The counselor — who suddenly felt the full impact of a justifiably angry, experienced trial attorney breathing down her neck — reluctantly admitted that he was right, and that most employers will assume employment agencies perform adequate background checks on applicants they refer.

“Could you imagine an employer who trusted your company, and after they are sued, realize that they hired a train wreck!

“Perhaps if I send the agency a bill for my lost time they might be more upfront with the next employer,” our reader’s email concluded.

An employment agency is ‘like a used-car lot’

You and the Law asked Bakersfield employment law attorney Jay Rosenlieb if our reader’s situation is unique and, if in his opinion, the words “trust” and “employment agency” belong together.

“An employment agency is a commission-driven business — like a used-car lot — only they make money by selling people. And so everyone they send you is perfect for your needs, a great fit, a real find or similar hype. Once you understand this reality, it is easier to select the right employment agency for your needs.

“Often websites and advertising materials create the impression they perform professional-level, due-diligence backgrounds, and some do, such as those in specialized areas — for example, aviation, health care or law enforcement — verifying license status — but little beyond that unless their contract specifically calls for a more in-depth search.

“But few go beyond verifying the last job, and rarely education or degree claims. Unfortunately, your reader’s experience is far too common, but at least he was not harmed beyond losing a bit of time. It’s often much worse.”

Obtain these documents from the agency

Rosenlieb advises that any employer who deals with an employment agency claiming to perform due diligence, or in language suggesting it, obtain the following:

• A copy of their policy, procedures and protocols on background checks;

• A copy of the actual background check and credit check, if applicable, and information obtained from previous employers concerning this specific employee.

• An indemnification agreement where the agency agrees to defend and pay damages  resulting from a negligent hiring lawsuit based on this employee causing harm, where evidence of unsuitability for the job would have been discovered if a proper background check had been done.

“Even then, with all of this, often it is still safest to have your own background [check] conducted by a licensed private investigator or firm specializing in pre-employment research.

“Depending upon the depth required, the cost can run well under $100 — rarely more than a day’s wages, giving a much more accurate picture of this applicant than any online, ‘learn anything about anyone for $20’ search.

“Especially in California, these are a waste of money, as many counties do not report Superior Court matters to national databases.

“In other words, use a professional and resist the urge to save a couple of bucks by conducting your own online search,” the employment law attorney concludes.

And the employer’s lost time?

If you recall from last week’s article, our attorney-reader, David, was suspicious of the applicant when he first looked at her resume. He could have thrown it away, but did admit to You and the Law, “I was really interested in just how many lies I could find in the applicant’s resume, and that’s why I spent so much time calling all over the place.”

But what if an employer legitimately spends time in discovering what the agency should already have learned, and not even sent the applicant? Would there be a basis to claim compensation for that lost time?

“Yes, I think so,” believes San Diego employment law attorney Ryan Bright.

“Sending that resume amounts to telling an employer, ‘Here is a qualified applicant.’  By trying to determine if it’s so, a lot of time is wasted. I’ll bet that a demand letter for the time lost would result in a check and an apology if they wanted to retain your business.”

Now, just so that you know, we contacted several of the nation’s largest employment agencies, asking for comment. Not one has agreed to talk with us.


Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.



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