Withdrawing an offer

TeresaL

We offered a position too soon and found out some info about the candidate that makes us want to withdraw the offer. How can I do it safely without getting a possible discrimination case? Candidate has history of causing problems for management. I want to cover the company.

Don D

Any offer made should be conditional. Conditioned on such things as successfully passing drug screen and standard background and employment history check and application verification. Our offers are always in writing with that disclaimer, which pretty much allows us to retract the offer for most anything that turns up. 'Causing problems for management' is pretty broad and vague. I've found such statements just as often as not to be made by somebody who had a personal dislike for the candidate and a desire to 'do him in'. I would take the statement into consideration in total context with all of the other information you have on your candidate. Hopefully you have such a disclaimer either on your application or in your offer process somewhere. If not, you will need to weigh, along with your attorney, the potential value of retracting the offer as opposed to the risk in any challenge by the candidate. At least you've learned not to make future offers without contingencies.

Cheryl S SPHR

Our verbal and offer letters (even after the candidate has accepted)are also "conditional" upon the candidate passing pre-employment screening. This statement is included in the letter even if we have (or think we have) completed the checks. We also include a statement reminding the individual employment in South Dakota is "at will".

I guess you have to weigh your risk if your offer wasn't conditional. Sorry I can't offer more!

Down_the_Middle

Since I currently have two (2) lawsuits for this very issue, I'm becoming more of an expert on this issue than I'd like. The legal issue is usually promissory estoppel or detrimental reliance and alleges that the candidate suffered damages as a result of relying on the employer's false offer of employment. If you are in an at-will state, you might have a stronger defense against withdrawing the offer, but the best suggestion I can offer is to ensure that your conversations and written documentation mention "conditional" or "contingent" upon.......... Even tho we did this with both of these lawsuits, we're on our way to trial to argue our point. You might offer this candidate a meal certificate (or similar item of value) as a token of your regret. While it acknowledges an error on your part, I've found that the rejected candidate will accept the apology and move on. Notwithstanding the exceptions I'm now dealing with. Good luck.......

Rockie

Always make your offer letter contingent upon successful completion of a background check (which includes references). Since most employers don't perform a background check until an offer of employment is tendered, this is important. I have had to withdraw offers on several occasions due to finding out unfavorable information on a candidate and have never had an issue with this. I always let people know up front that there will be a background check done.