Rescinding job offer

LindaS

This situation is one which a HR friend of mine is in and I would like some assistance..

An applicant came into her hotel to apply for a front desk position. After completing the app. he was very adamant about wanting an interview immediately and stated that he needed to gain employment due to his having a grant for education and that he needed a job to hold onto the grant. The manager gave him the interview. The applicant was very clean cut and friendly and the manager asked him when he would be available to start. He stated that he would be able to start the very next day. She responded that he should come back the next day to "start the paperwork".

Later that day the manager contacted several of his references and found out that in all likelihood he did not graduate HS as he stated and, after running his name through the state of WI Circuit Court access website, found out that he had been convicted of burglary several times, theft, possession of cocaine and other crimes. Based on this she contacted this person and told him that she could not bring him into the Front Desk position due to his criminal history. The information also stated that this person had to maintain employment or risk going back to jail.

The applicant has now filed a complaint with the state of WI stating that he was discriminated against due to his arrest and conviction record.

In my opinion the hotel had a legitimate business reason to NOT bring him into a position wherein he would have access to case, credit card information, personal information of guests, master keys to the hotel, etc. but I'm looking for some input from those of you in the hotel industry to see if I'm off base.

Thanks

Michael Modl WI

Michael Modl
Editor, Wisconsin Employment Law Letter
Axley Brynelson, LLP

Linda:

As you know, Wisconsin prohibits discrimination based upon arrest and conviction record. It sounds like part of the reason for not hiring the individual was that he lied about his education. That obviously is a legitimate nondiscriminatory reason for a hiring decision. Since your friend told the applicant that at least one reason for the hiring decision was his conviction record, she will need to defend the ERD complaint by arguing that the circumstances of the conviction are substantially related to the circumstances of the offense. Depending on what the burglary and theft convictions were about and the type of access the desk clerk would have to valuables and customer rooms, your friend may have an excellent substantial relationship defense.

Mike Modl

Hunter1

[font size="1" color="#FF0000"]LAST EDITED ON 09-12-05 AT 02:53PM (CST)[/font][br][br]Excellent advice from Mike. She should have just told him he wasn't being hired due to the lie, but it certainly sounds to me like she still has a darn good defense. Wouldn't want this character to have access to credit card and other personal information of guests besides probably having the key to the motel safe literally or figuratively.

System

[font size="1" color="#FF0000"]LAST EDITED ON 09-12-05 AT 03:12PM (CST)[/font][br][br]I don't see where industry has to do with hiring and applicant or keeping an employee who lied. Before I came here, they hired an HR Director who lied on her application. They discovered that she had had a felony conviction and lied on the application. She was employed for one week. She was terminated immediately when they learned that she had lied. A company should never have to defend itself for not hiring or for firing someone who lies.

Your friend and the company would benefit from a little management training.

LindaS

S Moll -

There are a couple of things, probably important things, that I missed in my initial post...

1) Their application does not ask if they had any convictions and,

2) The manager who interviewed this person "accidentally" threw away the application as well as any notes relating to the interview so it is her word against his.

System

Most applications, even 'canned' ones, have something to this affect: "I hereby affirm that this application contains no willful misrepresentations or falsifications and that the information given by me is true . . . I understand that willful misrepresentation or falsifications may result in my application being disapproved and employment . . . may be terminated on this basis."

Has this manager ever been trained on the process of interviewing and documenting?

LivindonSouth

It appears he also lied about having to get a job immediately in order to retain an education grant. I feel fairly certain that the system in WI would view as legitimate an employer's refusal to hire an ex-con whose crimes were substantially related to the opportunities to re-commit that the new job would offer. Had he also served time for rape or assault he should not be in a job that gives him ready access to the sleeping rooms of people. That would be insane, even in California. How close to California is Wisconsin anyway, philosophically?

LindaS

Oh, Don - you'd be surprised how close they are.

Michael Modl WI

Michael Modl
Editor, Wisconsin Employment Law Letter
Axley Brynelson, LLP


Even with the application being tossed, the defense will be the substantial relationship test. You should get copies of the conviction records, which you can get off of CCAP and copies of the criminal complaints which you can get from the county circuit courts. Your friend will then want to match up job duties with the nature of the thefts and burglaries. She will want to consider factors such as supervision. For example, if the employee would be working a night shift where there is minimal supervision and more opportunity for criminal activity, this assists in the substantial relationship defense.

Mike

Hunter1

Linda - As you know, the problem is not that WI employers cannot terminate or refuse to hire someone for falsification of their application. The problem is that your friend apparently told the person that she wasn't hiring him because of the convictions, etc. Sam is correct, if this person had the correct training, she could have been in a much better position in several ways: Have a better application; retain applications; be circumspect in what you say to applicants, etc.

All that being said, she's still in a pretty good position to defend her decision, she just has to defend the decision instead of not having the charge filed in the first place.

mbeam

[font size="1" color="#FF0000"]LAST EDITED ON 09-13-05 AT 11:50AM (CST)[/font][br][br]A hard lesson learned but a good one for the future. We have also found people who have interviewed well but have trouble telling the truth and nothing but the truth.

We make the employment offer conditional on reference and background checks. Would strongly advocate having something on the application regarding prior convictions.

It's an ironclad backup to why the individual wasn't hired - it's not that they disclosed the information but rather when they don't disclose - immediate readily defensible grounds for termination.

That being said, with the position that this individual applied for and their prior history, it should show that there are concerns for guest's safety and the safekeeping of their possessions should this person be hired.

Parabeagle

I am in the hotel industry and I think your friend is about to learn a very valuable lesson the hard way.

First of all, since you can't discriminate based on conviction record (what kind of law is THAT?), I agree with the other posters that the misrepresentation is the issue.

Secondly, especially for front desk agents, any offer of employment we make is conditional upon successful completion of a background check.

I agree with you that there are legitimate business reasons for a hotel not to hire the candidate - I would never hire someone with that kind of a record - but it seems to me your friend's only defense is to rely on the job-relatedness of the convictions to the duties the applicant would be performing.

Good luck.

LindaS

Parabeagle -

Do you have a job description for a Front Desk person? If so can you email it to me at [email]LindaS@Merrill-Mfg.com[/email]

Thanks