Amicus Curiae Brief — Wright Electric, Inc. v. Ouellette

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No. 04-1230

IN THE

Supreme Court of the Anited States

WRIGHT ELECTRIC, INC.,

Petitioner,

—_

THOMAS A, QUELLETTE, INTERNATIONAL BROTHERHOOD

ELECTRICAL WORKERS, LOCAL 292, AFL-CIO,

AND MICHAEL J. PRIEM,

Respondents.

On Petition for Writ of Certiorari to the

Minnesota Court of Appeals

BRIEF AMICUS CURIAE OF

ASSOCIATED BUILDERS AND CONTRACTORS,

INC., INSUPPORT OF PETITION FOR

WRIT OF CERTIORARI

STANLEY R. STRAUSS *

PETER H. KIEFER

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

2400 N Street, N.W.

Fifth Floor

Washington, D.C. 20037

202-887-0855

Attorneys for Associated

Builders and Contractors,

* Counsel of Record Inc., Amicus Curiae

May 16, 2005

TREASON LAINE RIDER 8 BE PE ELROD EN LINE TEE IR, ETT EENE MENTE, NING HI cs 8 NRE SE ETA RS SMPTE ENS RE A EME

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

TABLE OF CONTENTS

I. THE STATE COURTS MISAPPLIED THE

LAW OF FEDERAL PREEMPTION UNDER

THE NATIONAL LABOR RELATIONS

ACT AND THEREBY PRIVILEGED THE

MAKING OF FALSE STATEMENTS ON

EMPLOYMENT APPLICATIONS .................. 6

II. THE ISSUES PRESENTED BY THIS CASE

ARE OF GREAT PUBLIC IMPORTANCE

IN THAT EMPLOYERS WILL BE EFFEC-

TIVELY LEFT DEFENSELESS AGAINST

RESUME FRAUD AND ITS CONSE-

QUENCES IF THE MINNESOTA COURTS’

RULINGS ARE ALLOWED TO STAND......... 10

ee aiteceniiitseisiaidginaceniassenibedasiteiinalisakaksenadinnsase 13

(i)

i t

TABLE OF AUTHORITIES

CASES Page

BE&K Construction Co. v. NLRB, 536 U.S. 516

Belknap, Inc. v. Hale, 463 U.S. 491 (1983)........... 6, 8,9

Bill Johnson's Restaurants, Inc. v. NLRB, 461

U.S. 731 (IGS )sscccitiiceneiiceeeneansaa 6

Building Construction Trades Council vy.

Associated Builders and Contractors of

Massachusetts/Rhode Island (Boston Harbor),

SOT U.S. 208 CGR) csccaneaeaaaenas 9

Crawford Rehabilitation Services, Inc. v.

Weissman, 938 P.2d 540 (Colo. 1997)............... 12

Davis v. Re-Trac Manufacturing Corp., 149

N.W 20 37 Chl, VORP isciccciceseecseices 10

De Buono v. NYSAILA Medical and Clinical

Servs. Fund, 520 U.S. 806 (1997)..........ccccc000008 10

Farmer v. Carpenters, 430 U.S. 290 (1977).......... 6

FES, a Division of Thermo Power, 331 NLRB 9

(2000), supplemented, 333 NLRB 66 (2001),

enforced, 301 F.3d 83 (3d Cir. 2002)..............0. 2

Florenzano v. Olson, 387 N.W.2d 168, (Minn.

ESBS) ...<.<ar-nessnesnessieineisinceaniaisse\dliiaasiaiaaiaanan 10

Fort Halifax Packing Co. v. Coyne, 482 U.S. |

(1957) ....-.<0»sssensnsetinsinsiastiuadsiataiiialaandiaanaaaaaaas 9

Hartman Brothers Heating v. NLRB, 280 F.3d

11 20:(7eh; Cot, FURR). .ccecsaeniciieneanaaaen 8

Lechmere, Inc. v. NLRB, 504 U.S. 527 (1992) ...... 2

Linn vy. Plant Guard Workers, 383 U.S. 53

(TSG) .....nssssnanesninnsciedaaieininenagiatieiaiaenialaianna 6,9

Metro. Life Ins. Co. v. Massachusetts, 471 U.S.

TA (YSED) rinses 9

Micrometl Corp., 333 NLRB 1133 (2001)............ 8

Motor Coach Employees v. Lockridge, 403 U.S.

Z IE (1973) ..1snserieniannenainniaiteenittaiansagadaaaais 9

ili

TABLE OF AUTHORITIES—Continued

Page

N.H. v. Caritas Family Services, 488 N.W.2d

III SID cehicecitniiidecinsiiilig at aa 10

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S.

see occa EE OAR ET TEN OI Tl 10

NLRB v. Town & Country Electric, Inc., 516 U.S.

UTETI PEND isinasinsshienbicinsdiieneindinpitididaanisdaebiasnasiagens 2,5, 7,8, 10

San Diego Building Trades Council v. Garmon,

FIP ee ZOO (1DID) vccecnscrnccnesnetnesscernnaccentcasssenses 5, 8, 10

Sarvis v. Vermont State Colleges, 772 A.2d 494

aN i aliaiicacstecicheistahdiaaianit ee ae 12

Sears, Roebuck & Co. v. Carpenters, 436 U.S.

ce ITE Ae RRA a 6

Town & Country Electric, 309 NLRB 1250

(1992), affd sub nom. NLRB vy. Town &

Country Electric Inc., 516 U.S. 85 (1995)......... 2

Winn-Dixie Stores, Inc., 236 NLRB No. 204

SNS TEC eee a a Oa Ee 8

Wright Elec., Inc. v. NLRB, 200 F.3d 1162 (8th

Spur dE ccllnainspinithiclesatadieehenmartalatilasinabaasienes 5

Wright Electric, Inc. v. Ouellette, 686 N.W.2d

313 (Minn. Ct. App. 2004), review denied, No.

A03-1683, 2004 Minn. LEXIS 814 (Minn.

Ss AG MI cis abcess idehepeictebniimtacconniaccecsnias passim

OTHER AUTHORITIES

Jane Ritter “The Lying Game: A Matter of Fact

Approach to Resume Fraud,” The Galt Global

Review (Nov. 19, 2002), www.globalreview.

com/careers/lying_game2. html .................c.cc0000. 1]

“Many Resumes Are Misleading,” SHRM

Forum (2005), —_ http://www.shrm.org/ema/

library-published/nonIC/CMS _006087.asp........ 11,12

ee ee ee ee

TABLE OF AUTHORITIES—Continued |

| Page |

“One-third Canadians Lied In Job Resumes

Survey” Reuters (Jan. 19, 2000), www.info

CE OIE sccctectnictectitnininnsenitniiniiintnnennsite 11

Pamela Babcock, “Spotting Lies,” 48 HR

Magazine No. 10 (Oct. 2003) .........ssssesseeeseeeees 11

IN THE

Supreme Court of the United States

No. 04-1230

WRIGHT ELECTRIC, INC.,

Petitioner,

Vv.

THOMAS A. QUELLETTE, INTERNATIONAL BROTHERHOOD

ELECTRICAL WORKERS, LOCAL 292, AFL-CIO,

AND MICHAEL J. PRIEM,

Respondents.

On Petition for Writ of Certiorari to the

Minnesota Court of Appeals

BRIEF AMICUS CURIAE OF

ASSOCIATED BUILDERS AND CONTRACTORS,

INC., INSUPPORT OF PETITION FOR

WRIT OF CERTIORARI

INTEREST OF THE AMICUS CURIAE '

This brief is submitted on behalf of the Associated Builders

and Contractors, Inc. (“ABC”), a national trade association

' Pursuant to Supreme Court Rule 37.6, amicus curiae states that no

counsel for a party authored this brief in whole or in part, and no persons

other than the amicus curiae, its members, or counsel, made a monetary

contribution to the preparation or submission of this brief. This brief is

filed with the written consent of the parties pursuant to Supreme Court

Rule 37.3. Letters of consent are being filed with the Clerk of the Court

simultaneously with the filing of this brief.

representing more than 23,000 individual employers, both

union and non-union, who perform work in the construction

industry. ABC actively represents the interests of its member-

employers in a wide variety of labor and employment matters

before the courts, the United States Congress, the Executive

Branch and independent agencies of the federal government.

ABC has participated as amicus curiae in numerous National

Labor Relations Board (“NLRB”) and court proceedings, in-

cluding cases in this Court. See, e.g., BE&K Construction

Co. v. NLRB, 536 U.S. 516 (2002); Lechmere, Inc. v. NLRB,

504 U.S. 527 (1992); Town & Country Electric, 309 NLRB

1250 (1992), aff'd sub nom. NLRB v. Town & Country Elec-

tric Inc., 516 U.S. 85 (1995); and FES, a Division of Thermo

Power, 331 NLRB 9 (2000), supplemented, 333 NLRB 66

(2001), enforced, 301 F.3d 83 (3d Cir. 2002).

Absent review and reversal of this case by the Court,

ABC’s member construction contractors and other employers

will, as a result of the Minnesota state courts’ misapplication

of federal preemption under the National Labor Relations

Act (“NLRA”), be denied a judicial remedy for violations of

important state laws. Accordingly, ABC submits this brief

amicus curiae to clarify the important distinctions between

(1) the kind of union organizing activity commonly referred

to as “salting” (where union agents who are “salts” seek em-

ployment on a non-union job site targeted for unionization),

which is protected activity under the National Labor Rela-

tions Act; and (2) the unprotected “salting abuse” types of

conduct present in this case. These distinctions are crucial to

the analysis and determination of federal preemption under

the NLRA, and were incorrectly applied by the state courts

below, whose rulings are contrary not only to the determina-

tions of the National Labor Relations Board in this case and

in other like cases, but also to the seminal holding of this

Court in NLRB v. Town & Country Electric, Inc., 516 U.S. 85

(1995).

ABC member contractors are frequently the targets of both

union “salting,” as well as “salting abuses” that violate state

laws. Although the NLRB and the courts have defined sim-

ple “salting” as a legitimate organizing tool under the NLRA,

“salting abuse” extends well beyond such protected organiz-

ing activity. It consists primarily of myriad unlawful tactics

whose aim is the weakening or destruction of targeted non-

union employers.

Clearly, one form of “salting abuse” that is not protected

by the NLRA are the state law violations at issue in the

present case, i.e., making false and fraudulent statements on

employment applications unrelated to union status, such as

concealing the identity of prior employers or past job trans-

gressions relating to their lack of qualifications for the jobs

they claim to be seeking. Such forms of resume fraud are a

serious problem for employers and have an adverse impact on

the ability of employers to hire qualified workers. Federal

law, certainly, does not protect attempts by employee appli-

cants to engage in such activities. This is all the more nefari-

ous where, as here, job applicants are not asked to reveal their

Status as union supporters or organizers. Accordingly, absent

enforcement of state law protections of the type invoked

by Wright Electric in this case, ABC’s member construction

contractors, as well as other employers, will be left without an

adequate legal remedy to deter such conduct and thereby

protect their businesses from economic harm and potential

legal liability.

There is an additional legitimate public policy interest in

protecting the latter employers, their employees, and the pub-

lic from the consequences of fraudulent and falsified employ-

ment applications such as occurred in this case. For ABC’s

members, such false statements or intentional omissions of

prior training, work experience, or work misconduct, could

jeopardize the company’s ability to perform government con-

struction contacts that require as a precondition an accurate

account of employee job training and experience, could also

result in future employer liability and penalties for negligent

hiring or retention, and could expose employees and the pub-

lic to unsafe work practices. Thus, a construction employer

could be held vicariously liable for violations of federal or

state safety and health laws resulting from the unsafe working

practices of the “salt,” as well as being subject to legal actions

brought by customers and fellow employees for injuries sus-

tained as a result of such practices. |

STATEMENT OF THE CASE

Petitioner Wright Electric is a non-union electrical contrac-

tor headquartered in Plymouth, Minnesota. As Petitioner

asserts, when Thomas A. Ouellette (“Ouellette”) applied for a

position with the Company, he made a series of false state-

ments and deliberate omissions on his employment applica-

tion relating directly to his qualifications for the position he

was seeking. Thus, Ouellette concealed that he had previ-

ously performed electrical work without a permit in violation

of state law, that he had resigned without notice from a prior

employer with whom he claimed on his application to still be

—— employed, that he had intentionally broken company materi-

als at another previous workplace, and that he had engaged

in other workplace misconduct. Additionally, Ouellette’s em-

ployment application concealed the identity of five previous

employers.

When Wright Electric learned of Ouellette’s application

fraud, it acted consistently with the Company’s established

policies and terminated him. In response, International

Brotherhood of Electrical Workers, Local 292, AFL-CIO

(“Local 292”) filed an unfair labor pracfice charge with the

National Labor Relations Board alleging that Ouellette had

been terminated because of union organizing activities in

violation of the NLRA. The Board’s General Counsel never-

theless refused to issue a complaint and dismissed the union’s

charge, concluding that there was insufficient evidence to

I a a Ee ee, ee Cem

find that Wright had terminated Ouellette for anything other

than falsifying his employment application.

Subsequently, Wright Electric brought suit in Minnesota

district court against Ouellette, Local 292, and the Local’s

business agent, Michael Priem, based on common law claims

arising from Respondents’ fraudulent acts, and seeking mone-

tary and injunctive relief. Local 292 then filed new unfair

labor practice charges with the NLRB, contending that the

filing of Wright Electric’s lawsuit violated the NLRA. These

new charges were addressed by both the Board and the Eighth

Circuit Court of Appeals, both of whom effectively allowed

Wright Electric’s state court lawsuit to proceed, with no

finding of NLRA preemption as to Wright’s state court fraud

claims. See Wright Elec., Inc. v. NLRB, 200 F.3d 1162 (8th

Cir. 1999),

Ultimately, the Minnesota district court denied Local 292’s

motion for summary judgment with respect to Wright Elec-

tric’s state law fraud and related claims, holding that such

claims were not preempted by the NLRA. The Minnesota

Court of Appeals then reversed the lower court. Wright

Electric, Inc. v. Ouellette, 686 N.W.2d 313 (Minn. Ct. App.

2004), review denied, No. A03-1683, 2004 Minn. LEXIS 814

(Minn. Dec. 14, 2004). It held that Wright’s lawsuit was pre-

empted because Ouellette’s misrepresentations were “arguably

protected” under the NLRA. In so concluding, the Appeals

Court misapplied this Court’s rulings in San Diego Build

ing Trades Council v. Garmon, 359 U.S. 236 (1959), and

NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995).

Wright’s petition for review to the Minnesota Supreme Court

was subsequently denied. Wright Electric, Inc. v. Ouellette,

2004 Minn. LEXIS 814 (Minn. Dec. 14, 2004).

As we set forth below, the Minnesota Court of Appeals

failed to give weight to this Court’s controlling decisions that

federal labor law preemption does not apply to state tort

statutes of general application, particularly those laws that are

“deeply rooted in state common law and traditions.” See

Belknap, Inc. v. Hale, 463 U.S. 491 (1983); Bill Johnson's

Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983); Sears,

Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978); Farmer

v. Carpenters, 430 U.S. 290 (1977); Linn v. Plant Guard |

Workers, 383 U.S. 53 (1966). Instead, in what it acknowl-

edged as an “anomaly,” the Minnesota Appeals Court stated

(686 N.W.2d at 325):

As the law now stands, an applicant/salt may permissi-

bly falsify his application and thereby hide negative,

relevant aspects of his qualifications (even past miscon-

duct), if the past misconduct with non-union employers

happened to occur during the same time that the appli-

cant/salt was also engaged in protected union activities.

In such cases, we believe a salt has met the minimal

burden of demonstrating that falsifying an application by

omitting any reference to the employer in question is

“arguably protected” under the NLRA. Until the NLRB

or the United States Supreme Court addresses this

anomaly, the law compels the result that we reach here

today. (Emphasis added.)

Amicus curiae, in support of the petition herein, joins the

Minnesota court in inviting this Court to resolve that “anom-

aly” by granting review and reversing the state courts’ rulings

for the reasons that follow.

REASONS FOR ALLOWING THE WRIT

I. THE STATE COURTS MISAPPLIED THE LAW

OF FEDERAL PREEMPTION UNDER THE

NATIONAL LABOR RELATIONS ACT AND

THEREBY PRIVILEGED THE MAKING OF

FALSE STATEMENTS ON EMPLOYMENT

APPLICATIONS.

As noted above, the Minnesota state courts’ decision in this

case rests upon a misstatement of federal labor law that “an

applicant/salt may permissibly falsify his application and

thereby hide negative, relevant aspects of his qualifications

(even past misconduct), if the past misconduct with non-

union employers happened to occur during the same time that

the applicant/salt was also engaged in protected union activi-

ties.” (686 N.W.2d at 325). Relying on an “arguably pro-

tected” analysis of federal preemption, the state courts ruled

that the National Labor Relations Act, in effect, creates a

“right to lie” about employment qualifications, and there-fore

preempts state law to the contrary—an outcome that the court

itself characterized as an “anomaly” calling for resolution by

this Court. (/d.)

In fact, however, under the NLRA, there is no federally

protected “right to lie” about employment qualifications, or to

engage in common law fraud; and such fraud has never been

privileged either by this Court or other federal courts, or by

the National Labor Relations Board. We submit that the ef-

fect of the Minnesota courts’ ruling is to immunize “salts”

from legal proceedings arising from workplace abuses, there-

by creating a preferred status of employment for salts ele-

vated beyond that of ordinary employees. In fact, under that

ruling, an employer could maintain a state court action for

fraud against ordinary employees who falsify employment

applications, but not against “salts.” That result is not sanc-

tioned by federal labor law.

Although this Court held in NLRB v. Town & Country

Electric, Inc., 516 U.S. 85 (1995), that union agents seeking

employment with non-union contractors fall within the defini-

tion of “employees” under the NLRA and cannot therefore be

discriminated against based upon their support for unioniza-

tion, nothing in that decision immunizes union “salts” from

disciplinary action or other remedies for workplace miscon-

duct. To the contrary, the Court explicitly declared that such

misconduct would not be protected by the NLRA, and that

union activists lose the protections of the NLRA when they

step outside the boundaries of legitimate organizing activities

and engage in destructive or otherwise unlawful behavior

violating settled workplace norms. 516 U.S. at 96. See also

Hartman Brothers Heating v. NLRB, 280 F.3d 1110 (7th Cir.

2002) (NLRA protection limited only to “a lie related solely

to one’s union affiliation or unionizing intentions rather than

to one’s fitness for the job. . . .” and salt’s conduct protected

only if “the lie concerns merely his status as a salt, union

organizer, Or union supporter and not his qualifications for the

job.” 280 F.3d at 1112-13); Winn-Dixie Stores, Inc., 236

NLRB No. 204 (1978) (omission of “union employment” was

distinguishable from the omission or concealment of facts

an employer is entitled to consider in its hiring decisions,

in which case such falsifications are not protected by the

NLRA); Micrometl Corp., 333 NLRB 1133 (2001) (uphold-

ing discharge of union organizer for falsely identifying past

employer on employment application).

In its decision immunizing “salts” from state common law

liability for fraud, the Minnesota courts also rely on an overly

expansive interpretation of Garmon preemption. For it is

clear that under San Diego Building Trades Council v.

Garmon, 359 U.S. 236 (1959), state law will be preempted

only if it regulates conduct that is “clearly” or, under more

limited circumstances, “arguably” protected by the National

Labor Relations Act. Further, Garmon preemption is disfa-

vored where the state law reflects “a substantial interest in

regulation of the conduct at issue . . . and does not threaten

undue interference with the federal regulatory scheme.” See

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) (no preemption of

state fraud claim).

As this Court stated in Belknap, supra, there is no Garmon

preemption, and state law and state causes of action should be

maintained, “if the behavior to be regulated is behavior that is

of only peripheral concern to the federal law or touches inter-

ests deeply rooted in local feeling and responsibility.” 463

U.S. at 498. Accordingly, the “critical inquiry” in deciding

whether federal labor law preempts such deeply rooted state

law claims is “whether the controversy presented to the state

court is identical to or different from that which could have

been, but was not, presented to the National Labor Relations

Board.” /d. The Court in Belknap emphasized (463 U.S. at

511):

[The state] surely has a substantial interest in protecting

its citizens from misrepresentations that have caused

them grievous harm. It is no less true here than it was in

Linn v. Plant Guard Workers, supra, at 63, that “the

injury” remedied by the state law “has no relevance to

the Board’s function” and that “the Board can award no

damages, impose no penalty, or give any other relief to

the plaintiffs in this case. The state interests involved in

this case clearly outweigh any possible interference with

the Board’s function that may result from permitting the

action for misrepresentation to proceed.

Of course, the NLRA provides no affirmative rights or

remedies to employers for fraudulent conduct of union agents

or members in falsifying employment applications. However,

absent reversal by this Court, the state court decision in the

present case will deny efforts by employers to seek redress

under state law for unlawful union-sponsored misconduct.

The Minnesota courts’ ruling on preemption in this case like-

wise conflicts with the strong presumption, as repeatedly

emphasized by this Court, that in certain matters “Congress

did not intend to displace state law” (Building Construction

Trades Council v. Associated Builders and Contractors of

Massachusetts/Rhode Island (Boston Harbor), 507 U.S. 218,

224 (1993)), and that courts should be “reluctant to infer pre-

emption.” See also, Metro. Life Ins. Co. v. Massachusetts,

471 U.S. 724, 757 (1985); Motor Coach Employees v. Lock-

ridge, 403 U.S. 274, 289 (1971); Fort Halifax Packing Co. v.

Coyne, 482 U.S. 1, 21 (1987). This Court has further in-

structed that courts should be particularly reluctant to infer

preemption when the state law at issue, as here, deals with

an area traditionally controlled by state law. De Buono v.

NYSAILA Medical and Clinical Servs. Fund, 520 U.S. 806

(1997); New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995).

It is, in fact, instructive that the Minnesota courts have

demonstrated a substantial interest, and a deeply rooted state

tradition, for protecting its citizens, such as Petitioner, who

have been victimized by fraud. See N.H. v. Caritas Family

Services, 488 N.W.2d 282, 289 (Minn. 1992); Florenzano v.

Olson, 387 N.W.2d 168, n.4 (Minn. 1986); Davis v. Re-Trac

Manufacturing Corp., 149 N.W.2d 37 (Minn. 1967).

Accordingly, it is truly an “anomaly” for the Minnesota

courts to immunize fraudulent conduct which, as we argue

below, is harmful to its citizens. The anomaly is based on the

state courts’ misapplication of this Court’s ruling in Town &

Country and on an overly expansive “arguably protected”

analysis of federal preemption under Garmon

In sum, the Minnesota courts’ finding of labor law pre-

emption in the present case directly conflicts with the deci-

sions of this Court, as well as numerous other federal courts,

and should therefore be reversed.

II. THE ISSUES PRESENTED BY THIS CASE ARE

OF GREAT PUBLIC IMPORTANCE IN THAT

EMPLOYERS WILL BE EFFECTIVELY LEFT

DEFENSELESS AGAINST RESUME FRAUD

AND ITS CONSEQUENCES IF THE MINNE-

SOTA COURTS’ RULINGS ARE ALLOWED TO

STAND.

The particular type of salting abuse here at issue, lying on

an employment application, is frequently characterized as

“resume fraud”—a type of fraud that has reached epidemic

proportions in the business world and is having a serious

adverse impact on the ability of employers to hire qualified

workers. Until the Minnesota courts’ decision in the present

case, federal law has never been held to protect concealment

by employee applicants of the identity of prior employers or

past job transgressions relating to their qualifications; and this

is certainly true where the applicants had not been asked to

reveal their status as union supporters or organizers. Indeed,

as noted earlier, federal law does not provide a remedy for

falsification of employment applications or of resume fraud at

all, leaving enforcement of such fraud claims to the states.

Accordingly, in the absence of the enforcement of state law

protections of the type invoked by Wright Electric in this

case, employers will be unable to protect their businesses,

their employees and customers from potentially serious harm.

Resume fraud has been recently described as a huge and

growing problem that is “abundant” and “rampant.” One

recent report estimates that over 40 percent of all job appli-

cation forms contain lies or discrepancies of some kind; and

thirteen percent of people misrepresent negative aspects of

their previous jobs relating to work habits, attendance, behav-

ior, termination or other unfavorable conduct.’ Another study,

which likewise found that one third of all applicants commit

resume fraud, determined that nearly half of such applicants

had past performance problems or were not able to meet job

expectations.

“Many Resumes Are Misleading,” SHRM Forum (2005), http://www.

shrm.org/ema/library-published/nonIC/CMS_006087.asp; see also Pamela

Babcock, “Spotting Lies,” 48 HR Magazine No. 10 (Oct. 2003) (hiring

lying applicants can be “‘an expensive mistake”).

* Jane Ritter “The Lying Game: A Matter of Fact Approach to Resume

Fraud,” The Galt Global Review (Nov. 19, 2002), www.globalreview.

com/careers/lying_game2.html.

* “Spotting Lies,” supra n.2.

* “One-third Canadians Lied In Job Resumes Survey” Reuters (Jan. 19,

2000), www. infocheck.ca/news.html.

In order to protect their ability to hire qualified applicants,

and whether or not the issue arises in the context of “salting”

activity, employers must be able to investigate and take action

against those who commit resume fraud. Indeed, employers

are routinely advised by human resource experts that the only

way to prevent such fraud is to thoroughly check all employ-

ment references on employment applications.° In this regard,

the right of employers to take appropriate action against

applicants or employees who commit resume fraud, once

the fraud is discovered, has been repeatedly upheld in state

courts across the country. See, e.g., Sarvis v. Vermont State

Colleges, 772 A.2d 494 (Vt. 2001); Crawford Rehabilitation

Services, Inc. v. Weissman, 938 P.2d 540, 549 (Colo. 1997).

Public policy should neither encourage nor reward de-

ceitful conduct by applicants in the employment process,

especially where, as here, an employer has a legitimate ex-

pectation to be truthfully informed by applicants about their

qualifications for employment. Employers are exposed to

vicarious liability for their employees’ workplace miscon-

duct, such as sexual and racial harassment, workplace vio-

lence, and occupational safety and health violations affecting

co-workers and customers. Moreover, in an era of heightened

security concerns and reference checks, it is ironic that the

effect of the Minnesota courts’ decision could be to encour-

age applicants to withhold their employment history and past

transgressions with impunity, based solely on the assertion

that by posing as “salts” they are immunized from common

law consequences.

We submit that federal law should be clear that employers

like Wright Electric are entitled to seek relief in state court

from employee applicants’ intentional fraud and unlawful

misconduct. Indeed, other than the state courts, employers

who are confronted with resume fraud have nowhere else to

° See “Many Resumes Are Misleading,” supra n.2.

turn for redress. For it is the state courts, not the federal

courts, that traditionally address and remedy tortuous con-

duct. The Minnesota Court of Appeals correctly referred to

its decision as an “anomaly;” indeed, that court’s decision not

only has the “anomalous” result of encouraging intentional

fraud in the employment application process, but it also

provides no acceptable justification for radically changing the

normal balance of federalism.

CONCLUSION

The decision of the Minnesota Court of Appeals, and the

denial of review of that decision by the Minnesota Supreme

Court, directly conflict with rulings of this Court and with

numerous other federal court decisions on issues of great

public importance. For each of the reasons stated above, as

well as those advanced by the Petitioner, the Court should

grant the writ of certiorari and reverse the decision below.

Respectfully submitted,