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We have recently put together an HR unit, which reviewed all our employees and found that one has an unsatisfactory qualification (BA in Public Relations from an unaccredited college). HR suggested terminating her contract with a notice. HR tells us that her degree from an unaccredited university should still be considered an academic qualification because the document is still legal.

I am not satisfied with the HR reasoning:

  1. We cannot fire her for misconduct because she has not made any false claim. She claimed to have this qualification (the document) and she does. It was our responsibility to check the validity/quality of the qualification.

  2. We cannot extend misconduct claims to paid salary because there is no evidence that she failed to have the skills claimed.

I feel deceived and fooled, and cannot simply let it go.

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    Does she actually lack the needed skills to do the job? If so, why do you need her to have a "real" degree anyway? Can you give her some kind of exam to see if she is functioning at the college level in whatever competencies you need? – Robert Columbia Jul 26 '18 at 20:09
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    @RobertColumbia Given the last sentence in the question, I don't think the original poster cares whether she's capable of doing the job or not. The original poster just wants revenge for being deceived. – Ross Ridge Jul 26 '18 at 22:07
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    I'm going to pile on a little here: Is she performing her job satisfactorily? If so, "cannot simply let it go" is, to be honest, childish and unprofessional. If not, what does her degree matter? You should have mechanisms in place to deal with underperforming employees. – Walt Jul 26 '18 at 22:23
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    Can you maybe say more about how you were deceived? Did she accurately report that she has a BA in Public Relations from [Name of Unaccredited University]? Did she make any claims about her coursework that you now believe to be false? Do you believe she got a degree from an institution that required essentially no coursework at all, or one that doesn't meet your standards? What did she specifically do that you feel was deceptive? – Zach Lipton Jul 27 '18 at 3:14
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    What exactly is the issue with the employee? As you said, she made no false claims. It is up to you to check whether the degree she has is sufficient for the job. If she performs badly, put her on a PIP. If she performs well, then what does it matter from which institution her degree is? Are you just mad because the degree she has is not what you would like it to be? Its not really clear from your question what the actual problem is. From reading it, you are more mad at yourself for not properly vetting the institution she got the degree at. – Polygnome Jul 27 '18 at 11:27
168

You don't have enough information.


What you have is a feeling. And feelings are a lousy reason to engage in a legal action.

Now, you have a very strong feeling, and that makes it seem to you like the strength of the feeling alters the above advice. Yes, it does. Very strong feelings are an exceptionally terrible reason to engage in a legal action!

I never lose. My superpower is to set aside feelings, gather all the facts, including the ones I don't like, and so doing, know what the judge will say.

What you need is more info. For instance, out of your prejudice, you have decided for yourself that "unaccredited" is the same thing as "degree mill". It isn't. There's a huge gulf between:

  • an eccentric university whose brilliant management is too busy actually teaching to play the political games necessary to get an accreditation certificate, and that process may be corrupt in that state.
  • This could be especially so if the university largely serves minorities, and the barriers to accreditation are borne out of bigotry. If so, you could blunder your company right into the middle of some other state's discrimination problem.
  • a fake college whose solitary purpose is sneak immigrants in to take employment, by misusing student visas.
  • a college who uses new media to teach, and their methods are too cutting-edge for the stodgy old accreditation institutions to accept.
  • a college who represented themselves as genuine to the students, and indeed made a fair effort to book-teach them, but the person whose job was to secure accreditation didn't know what they were doing, and found an accreditation agency which wasn't genuine.
  • Exactly what you presume: a student swaps a huge pile of money for a degree, presumably that pile of money is in the form of a private student loan at stupid interest rates.

It's likely the person actually did all the real work of college, the accreditation issue is news to them, and if anyone was hoodwinked, it was them.

All this misses the point: accreditation is not the important issue. What matters is whether the student applied themselves, organized themselves well, did their best, and willfully extracted a good education. A person can "do the minimum" all the way through Harvard, and be not half the employee as a go-getter at Boston Community College who exceeded the course material and snuck over to Harvard's library for more. Damn the credentials, you want the successful student.

Oh wait, this is the Law SE. Why do you want the successful student? Because you have a fiduciary duty to do what is in the best interest of the company and place good employees. To follow your own Don Quixote crusade against people whose colleges had faulty accreditation, is a conflict of interest.

You aren't even interested in ascertaining whether this person is a good employee. And that, really, is the bottom line. You (or rather, anyone but you) should be looking at that person's PRs and 360's, and looking at their overall performance for the company. The company's criteria for keeping or replacing should be the probability of finding someone significantly better at about the same pay rate. If this person is an earnest performer, you may have trouble doing that.

It's that simple. Employees must do what is in the company's best interest.

There's an old joke. Kevin asks the sales manager, "Why do you keep Morty? I've seen his written memos and reports, the guy is a terrible speller."

"Yeah, but he outsells all the other salesmen 3:1," said the manager. And I pay him to sell, not to spell."

  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Aug 5 '18 at 20:10
82

Higher education degrees are not federally regulated, and are only weakly regulated at the state level, so if a person has a degree from an institution which is not accredited by a recognized accreditation organization there is no violation of the law and no misrepresentation. States may impose restrictions on institutions that operate within their borders, but in New York for example the requirement is to have permission to operate, and does not require official accreditation.

The question then is whether anyone (and who) has committed fraud in their representations to you. I presume the employee truthfully stated the name of the degree-granting institution, and that is typically all that a potential employee would say. It is up to the employer to determine whether that institution has the necessary stature in the field. If a job qualification were stated to the effect that the candidate must have a degree "from an accredited institution of higher education", and even supposing the candidate actually says "BA from Hamilton University, accredited by American Council of Private Colleges and Universities", that could be (and would be in that instance) a truthful statement. This web site has a list of accreditation organizations that it calls "fake". Typically, accreditation ought to be by an organization recognized by the Council for Higher Education or the Dept. of Education. But there is no law prohibiting the operation of an accreditation program that is not recognized by one of these two entities.

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    Do you mean some kind of qualification list in the contract? I've never seen one, but my experience is limited. Otherwise, I wouldn't think a job advertisement would be binding--too many articles about how to apply for a job if you don't have all the requirements! – user3067860 Jul 27 '18 at 23:13
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    Let's say that there was an application form, where a candidate fills in answers to specific questions (e.g. "have you been arrested", "do you have a license to practice X"). Most likely, the education question would be simply "List degrees and institutions": in such forms that I have filled out, that is all they ask. The problem is that there isn't any reasonable way to ask the question that you're interested in, that is, filtering out sketchy credentials. Hence the burden is on the employer to vet the candidates. – user6726 Jul 27 '18 at 23:27
  • @user3067860 Depends on the field. For engineering, you'd see a job ad list something like "M.S. from an ABET-accredited program or 8 years experience", since ABET is the only commonly recognized accreditation board in engineering. – user71659 Jul 30 '18 at 16:52
  • @user71659 Yup, but that's mostly because of two things - legal requirements and responsibility (not the right word, can't remember what I'm looking for :D). If someone can engage in legal action against your company based on an employee not having the required certification, said certification is a big deal regardless of the employee's actual competencies. Just like regardless of how good an electrical engineer I might be, if I don't have the proper certification and redo all the wiring in my house, the insurance company may not pay me anything if my house burns down. – Luaan Aug 1 '18 at 7:16
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    Asking for "accreditation" just leads to infinite regress: you may ask that they prove that it's a "real" college by it being approved by an accredidation organization, but who accredits the accreditation organizations? – Acccumulation Aug 7 '18 at 15:39
31

Let me describe example situation:

  1. She went to the store and picked up some merchandise
  2. She walked to the checkout and produced a Monopoly banknote
  3. The clerk gladly accepted the Monopoly money and gave out change in real $$

Now, who's at fault here? Who's is deceiving who? Who's getting fooled? Clearly, the clerk is at fault. It's literally his job to refuse Monopoly money and demand real money instead. It doesn't even need to be Monopoly money, it could be some real, but low value money, like Indonesian Rupiah (that you'd need over 10000 to get $1 value) and the person paying might genuinely miss the memo that this store is accepting USD. It's clerk's responsibility to not allow that.

I feel deceived and fooled,

It wasn't you who got deceived and fooled. One of the employees at your department, who's job was to verify the diploma, deceived and fooled their employer by pretending to be doing their job while they were clearly not. Just as HR said:

It was our responsibility to check the validity/quality of the qualification.

Similarly, one could apply to a position that requires BA in PR from Harvard but instead produce BA in IT from Harvard. It is part of the recruitment process to not overlook such "details".

Now to the final part:

and cannot simply let it go.

If you can't let it go, then find the person responsible for accepting mill diploma and make your employer punish them. If you are that person and you want to defend yourself from such punishment, then find if the "accredited" requirement was actually known at the time of recruitment, communicated to you and if you had the tools to check it (eg being told which accreditation list is valid). If you really blooped, then apologize, bite the bullet and learn from your mistake.

If you want to retaliate against your soon-to-be ex-PR, then your feelings are misplaced. She did nothing wrong, she's already getting fired and there is nothing more you can do against her. If you try, then it will be you who breaks the law.

/edit: note to the readers:

The purpose of Monopoly money in this example is to get us understand OP's reasoning. The question is based on feelings: OP feels deceived and cheated because he believes a fraud or misrepresentation was made. That a "fake diploma" was presented instead of "genuine one". The concept of paying with Monopoly money evokes same feelings in us: we feel that it's fraud, misrepresentation, forgery and deception. But it's not. It is the mind of the person accepting the note that gets lulled by routine and tricks the person into not doing their duties diligently, that is: to verify if item presented is in fact the expected one. Neither item claims to be the other, nor can be described as deceiving.

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    Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jul 30 '18 at 15:37
  • "If you can't let it go, then find the person responsible for accepting mill diploma and make your employer punish them. If you are that person" - lol, then clearly he should punish himself! – industry7 Jul 31 '18 at 14:58
  • @industry7 maybe not, it could be excuse to do something else for a while. Some people have seemingly good positions which they get tired of and if they would just quit everyone would ask "whyy!? your job was so good!" and it would be a real pain to try and dodge that question whenever it happens. If instead he had to go he could always say he doesnt know or that it was outside his control. – mathreadler Jul 31 '18 at 18:19
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    Employers should not accept degree qualifications if they are unable to verify their accreditation. Similarly businesses should not accept legal tender if they can't tell a forgery from the real thing. Fraud detection (vetting) has always been fundamental to conducting any contract. Caveat Emptor. – Dominic Cerisano Jul 31 '18 at 18:45
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    "She walked to the checkout and produced a Monopoly banknote" - This isn't an accurate summary as it implies a deliberate attempt at deception by the person making the purchase (Monopoly money being obviously fake and trivially recognizable as such). Based on the OP's description, that's not what happened. It would be better to say something like "She walked to the checkout and produced a $20 bill that, unbeknownst to her, was actually counterfeit" or ""She walked to the checkout and produced a Monopoly note, saying 'hey, this is what I have, can I pay with it?'". – aroth Jul 31 '18 at 23:40
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Invest in the employee and get them properly qualified

If you have someone that is already functioning well on the job, doing their tasks as specified by the contract, and the only thing missing is a qualification... then get them qualified!

The time, effort and money it will take to get someone new into that same position and up to speed will most likely be more expensive than taking an existing employee and fixing the issue.

So approach the employee and say...

Look, for this position we need someone that is qualified. You are doing a great job so far and we would hate to let you go. So... we are willing to offer you to use X amount of hours per week for Y amount of months that you need to study for the qualification. If you achieve that qualification by the end of those Y months, then you can expect a bonus of Z USD. If not however, we will have to let you go, because a qualification is necessary for that position.

You have shown good grace by giving them the opportunity to fix the issue, with no blame assigned to anyone. You also place the hot potato squarely in their lap, and with that wash your hands clean in regards to any potential upcoming termination of contract.

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    Good answer, but it belongs more on The Workplace than on Law (arguably, so does the question). – TRiG Jul 27 '18 at 16:13
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    @TRiG I agree. The question should be moved there. – MichaelK Jul 27 '18 at 16:24
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    This question is perfectly appropriate for Law SE. This answer is not at all appropriate for Law SE. Please address the law and legal process, do not give career or business advice. – Nij Jul 27 '18 at 20:52
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    Just because a question is fairly legal in nature does not mean that every answer to it must be. Sometimes the best answers to legal questions are non-legal resolutions. – ohwilleke Jul 28 '18 at 4:24
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    @ohwilleke I'd really hope most of the best answers to legal questions would be non-legal resolutions. Legal action should be the last answer anyone wants - except for resolutions like "I take a shotgun and..." – Luaan Aug 1 '18 at 7:21
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  1. Can I terminate an employee for qualifying for a job through a “degree mill?”

Yes, you can.

  1. Do outsiders (myself, the employee, or a court) have to accept your explanation of your reason?

No, absolutely not. The employee might allege that the real reason for the termination is membership in a protected class and a court might believe them

I am curious why you suddenly decided to review the academic qualifications of employees - were you looking for an excuse to fire someone. To be blunt, I am inclined to believe your employee if she alleges bad faith on your part.

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    None of the facts in this answer are wrong, not sure why downvoted. Anyone can sue anyone at any time for any reason, it's idiotic not to consider the possible risk of a suit in this case. At-will employment is not a magic shield against lawsuits. – barbecue Jul 29 '18 at 1:22
  • "why you suddenly decided to review the academic qualifications of employees" is disclosed in the question: they hired an HR department which, being duly diligent, reviewed existing personnel records. – phoog Jul 31 '18 at 22:51
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    @phoog that is more or less "we did it bc we wanted to" - which is OK because OP does not really need to have a reason. However if the plaintiff can prove an illegal reason by the preponderance of the evidence, OP loses. – emory Aug 1 '18 at 0:39
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At the end of the day, you employ people for their competencies, attitudes and what they add to the business.

  • It doesn't sound like she is lacking in any of those areas, because nothing has turned up in previous performance reviews. She is "known-good".

  • It doesn't sound like she was dishonest - she was asked what educational record she had, she replied honestly, and the company, having done all the checking it felt was needed, took her on, and has not been disappointed by her work performance since doing so.

To me, that says it all. When you identify an actual way in which she is unacceptably incompetent as an employee, or fails to act as a good employee should, then you have a real issue. Until then, you don't have any issue at all.

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    You've answered the question as if it were posted to workplace.SE. And that's understandable because it seems like the question is about a workplace. But this is Law.SE. So answers should address the legal aspect of the question in at least some degree. – grovkin Jul 31 '18 at 22:33
  • @grovkin the legal aspect of the question that is addressed by this answer is the incorrect belief that that the facts described in the question constitute a personnel problem for the employer. – phoog Jul 31 '18 at 22:55
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We cannot fire her because of misconduct because she has not made any false claim. She claimed to have this qualification (the document) and she legally has. It was our responsibility to check the validity/quality of the qualification.

This only applies if the employee is not an employee at will. This could be the case, in academia, for a professor or at a public university, but would not typically be the case for a junior administrator at a private university. Almost everyone in private sector non-union jobs except senior managers are at-will employees who can be fired for any reason (except those prohibited by law: race, sex, age, etc.).

It really is on you, however, to determine how legitimate the institution that grants someone a BA is, especially in academia.

Worst case scenario, if the person is an employee at will, that person could qualify for unemployment benefits if the firing is determined to be not for good cause. But, paying unemployment benefits for a fairly short term mid-level employee is really not that big of a deal. It will increase your unemployment insurance premium a little, but probably by less than the total amount of unemployment benefits paid which are pretty meager in any case.

If it is worth it from an institutional and management perspective to make it clear that trying to pass a "diploma mill degree" off as a real one is unacceptable, then you are free to ignore HR's advice, if the employee is at-will.

You may not take any legal action against the diploma mill itself.

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    You can fire an "at will" employee for any reason, but if there's no cause then the employer must give notice. So the original poster can "terminate her contract with a notice" as recommended by HR, but can't "fire her [without notice] because of misconduct" if there hasn't been any misconduct. – Ross Ridge Jul 27 '18 at 1:47
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    @RossRidge "if there's no cause then the employer must give notice." This is simply not true. – ohwilleke Jul 27 '18 at 14:21
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    Most places in the US have "at will" employment, which means that the employer can dismiss the employee at any time for almost any reason. (There is a list of illegal reasons, which varies slightly by jurisdiction.) There can be expenses involved in a firing for no valid cause, which is what this would be. – David Thornley Jul 27 '18 at 16:17
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    @ohwilleke Many companies have something in the employment contract that says, roughly, "if we fire you without notice, we'll give you X severance package", which generally entails much more money than the company would have to pay for a firing with notice. It's not illegal, no, but in many cases it's worse. It's a fine price to pay if the person is actually hurting the company, but in this case it's probably not worth it. – Nic Hartley Jul 27 '18 at 17:30
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    @NicHartley while that might be true no such factual basis for this clause existing was provided in this question. Thus to me this answer is appropriate. – Viktor Jul 27 '18 at 17:36
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Presuming that you're an employer in the US, by default you can fire any employee for any reason (short of discriminatory reasons such as race, sex, disability, etc) and at any time (see at-will employment). The only thing that could stop you is the contract you've signed with said employee and it then becomes an issue of talking to a lawyer to figure out what constitutes a fireable offence under that contract.

Whether or not it's the moral thing to do is off-topic on Law.SE and should be asked on Workplace.SE instead.

  • Not just "the moral thing to do", but also "the wise/clever thing to do". – gnasher729 Aug 7 '18 at 16:39
0

At first, I thought this was a Workplace question, but seeing it's on Law SE exchange completely changes things. Whether you "feel deceived" is a pertinent matter for Workplace SE or IPS SE, but not for Law SE. If you can't "let this go", that is your personal issue, not a legal one. A diploma being "unsatisfactory" is not sufficient cause for termination. Your HR department's reasoning looks sound. For this to be a for-cause termination, you would have to either show either deception or lack of qualification.

For deception, you would have to show that the diploma is so obviously fake that the employee couldn't have possibly have presented it in good faith, which is a very high bar; you will have to somehow present convincing evidence about your employee's state of mind. It's not enough to show that the vast majority of people don't consider it real; you have to show that your employee did not have a good faith belief that it was valid, which is reaching into mind-reading territory.

For qualification, you would have to show that having a degree from a "real" college is somehow necessary to perform the job. The fact is, most degree qualifications for jobs are not strictly speaking necessary, and exist only as proxies for legitimate qualifications. Furthermore, the fact that she has been on the job without you otherwise finding her to be unqualified is going to make it difficult to claim that the degree is a necessary qualification. If there is some task she is failing to perform adequately, then you can use that as cause. If there isn't, then the degree issue is going to a weak basis for termination. And even if you can show a Bona Fide Occupational Qualification, there can still be the issue of whether requiring a degree is the least restrictive manner of fulfilling this interest, and whether it has a disparate impact on protected classes.

So it's unlikely that this will a valid basis for a for-cause firing. The issue is then whether you can fire her without cause. For that, there is not enough information to answer. There will be issues such as local laws, whether she is under contract, whether there is a union, etc. It would also open you up to accusations of discrimination. Also missing from your question is just what your position in the company is. Apparently you're not part of HR, so just why would you have the power to fire anyone in the first place?

  • Power to hire and fire is usually not vested in HR but in the manager to whom the position reports. – phoog Aug 7 '18 at 16:59
  • @phoog I'm hardly an expert, but my understanding is that managers are the ones that generally make the decisions, but the actual enactment of those decisions is done by HR. And OP doesn't make any mention of being a manager anyway. – Acccumulation Aug 7 '18 at 17:08

protected by feetwet Jul 27 '18 at 15:53

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