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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1128

## Text

No. 04-1230

IN THE
Supreme Court of the Anited States

WRIGHT ELECTRIC, INC.,
Petitioner,

—_

Ve

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

ii
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

iV
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.

2

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).

a

3

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

4

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

5

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

6

“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

7

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

8

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

9

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

10

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

1]

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.

12

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.

13

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,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0628%3A3. Public record. Not legal advice.