LET’S CANCEL THAT JOB OFFER

Steven Cesare, Ph.D.

An anxious landscaper from Missouri called me the other day to see if and how he could rescind a conditional job offer his company recently made to a management applicant. The short answer is “yes” it can be done. In most cases, conditional job offer letters contain an at-will employment statement, that allows a company to revoke an offer for any lawful, non-discriminatory reason. Thankfully, the Missouri company had such language included in its job offer letter.

In general, conditional job offers are rescinded for the following reasons:

Failed drug screening or credit check;
Failed background check;
False or misleading information on a resume or application;
Failure to meet required licensing or certification requirements; or
Concerns arising from references, social media activity, or candidate behavior.

In most cases of job offer rescission, the applicant may have been found to lie on his/her resume, work history, or in the interview. Those salient misrepresentations are easily addressed. Conversely, if an “informal” background check (i.e., “casual” social media review) reveals unflattering detail, the process becomes problematic, in that it can be alleged that this candidate was treated differently than other candidates (i.e., discrimination). For example, possible discriminatory actions could be due to EEO violations, ADA concerns, historical workers compensation claims, union activity, criminal history, etc.

When asked, the landscaper stated coyly that “some additional information has popped up.” Since I am not affiliated with the company, I asked if that additional information was discriminatory against any protected employee category. I was told “No.” While I took the landscaper at this word, I reminded him that if his company did any extraordinary review of this candidate, while not doing the same for all other candidates, potential legal implications could result. He curtly acknowledged my point.

If the vetting process reveals something troublesome, it is often legally required and procedurally worthwhile to allow candidates to explain or disprove the negative information about them. Candidates can sometimes fail a background check through no fault of their own (i.e., a background check erroneously surfaced a murder conviction for someone with the candidate’s same name).

That said, just because a company can rescind a job offer letter legally, potential legal consequences still exist. The offer of a job can be seen as a promise of employment in certain cases, a concept known as promissory estoppel. That’s particularly true if the candidate experiences hardship based on the expectation of new employment, such as resigning from his/her current job.

Luckily, the offer letter was mailed two days ago, was directed to a white male (i.e., not a protected class member), with a local address not requiring relocation expenses. Had the job offer been extended across a lengthier period of time it would have increased the likelihood the applicant would have informed his current employer of the employment change. Likewise, if the job offer had been sent to a protected class member, and/or if moving expenses were included, immediate legal involvement would be strongly advised.

Here are some practical tips to consider if your company has to rescind a conditional job offer letter:

Confer with an attorney to draft an SOP replete with a compliant job retraction letter, and script you on what to say and what not to say when you inform the job candidate of the revised decision.
Communicate with the candidate quickly, empathically, directly, and personally.
Be transparent unless there’s some valid, lawful reason not to share it.
Ensure candidates know about employment contingencies (e.g., background checks, drug tests and reference checks) at the start of the interview process.

And most of all, make sure you treat all applicants the exact same way (e.g., application review, interview questions, social media review, reference checks, drug testing, background check), all the time.

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