October 23, 2010

Rescinding Job Offer Based on New Information Q&A

Can you rescind a job offer if you find out new information about a candidate? For instance, can an employer rescind a job offer due to errors on applications? Learn what steps you can take to limit liability in this situation.

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Q: We recently offered a job to a candidate who is supposed to start next week. However, yesterday one of my board members indicated that the candidate was a “troublemaker” and was adamant that she should not be hired based on a recent confrontation the board member had with her. Can we rescind the job offer based on this new information, and if we do, should we tell her why?

(Download free Hiring model policy including HR best practices and legal background.)

A: As a general rule, employers have the discretion to rescind a job offer. However, when you do so, you can raise questions regarding whether you are doing so for nondiscriminatory reasons. So, you should make sure that you can document your nondiscriminatory reasons for doing so. In particular, you should be comfortable that your board member’s objections are nondiscriminatory and reflect negatively on the candidate’s ability to perform the job.

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A first step may be to determine what exactly your board member means when he says the person is a “troublemaker.” If, for example, his assessment is based on the applicant’s participation in protected activities (such as the applicant is a member of a minorities’ rights group and this bothers the board member), you may want to rethink the job withdrawal because of the potential discriminatory implications, assuming the applicant is otherwise qualified.

But, if the applicant and the board member had a confrontation that calls into question the applicant’s ability to perform the job duties effectively, that incident may be a better reason to withdraw the offer. For example, if the candidate lost her temper and was abusive or offensive when talking to the board member at a professional meeting, these actions could be considered appropriate reasons for withdrawing the job offer.

Another problem if you rescind the job offer is what to communicate to the applicant. You generally are not required to explain your decision to applicants who are not hired, but since an offer was already made, the applicant will assume that your organization has a particular reason for the withdrawal. One approach is simply to explain to the candidate that new information has come up that changed your view of the candidate’s qualifications for the job. However, this explanation also may seem vague and unsatisfactory to the candidate and cause her to assume that your decision is somehow based on improper reasons.

Alternatively, you may want to provide a more detailed explanation of the final decision to the candidate to help her understand your rationale. If you take this approach, you should consider the following two tips for providing a succinct account of the withdrawal:

(1) To protect against claims of discrimination, any explanation should be factual, straightforward, and brief. You should not go into elaborate detail to justify the decision but should explain the legitimate, business-related reasons for the rejection. While the candidate may not like the decision, she at least may have a better understanding of it. Under these circumstances, the candidate will be less likely to perceive the action as discriminatory or illegal.

(2) The candidate is not entitled to any more information than you choose to divulge. Therefore, if the candidate pushes for more reasons or makes threats of legal action, you should end the conversation and thank the candidate for her time.

(Download free Hiring model policy including HR best practices and legal background.)

As a final step, it is prudent to discuss this issue with your attorney prior to communicating the final decision to the applicant to ensure you have considered all potential legal issues that could arise as a result of the withdrawal.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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