Re-tracting an offer of employment

Hello I have a situation that I would appreciate some guidance on.

We made an employment offer to a job candidate in which this person accepted and was scheduled to start work on 10/13/08.  He called the evening before he was to start and left a message stating that his uncle suddenly passed away and he would not be able to come in to work until later that week.  I called him back and let him know that we were sorry to hear about his situation and we could push his start date to 10/16/08 he said that would be fine.  Our billing manager decided that it would be easier for both parties if he could start on 10/20/08. She then called and left him a message on 10/14/08, this person called back on 10/15/08 letting me know that he was still out of town and that starting on 10/20/08 would be fine and he would be there no matter what. Today when I come into work 10/20/08 I received a message from this person (he called 10/19/08) stating that his aunt had a massive heart attack (on 10/16/08) and was in the hospital and he had to stay to help his cousins deal with everything since they lost their father and now their mother was in the hospital. He called me this afternoon to make sure I got his message and wanted me to know that he was sorry and could start on 10/23/08 since he would be in town by then. 

Although I understand that these types of situations happen this one has red flags waving all around it.  Could anyone please help me in determing whether we should give this person another chance or let him know its not going to work out. If we do decide that it is not going to work out can we advertise the position once again since we dont really have another candidate lined up? What would our legal liability be?  We have had employees who started off like this in the past and it did not end up well and of course I would like to avoid future problems if possible.


  • 11 Comments sorted by Votes Date Added
  • I would contact your corporate counsel before you do anything.  The last thing you want is to set yourself up for a lost wages claim.

    Since it is already 10/20 and you're talking about a matter of days, this isn't about needing someone to start earlier than they are able to.

    I would, however, put some rules into place for the individual such as not allowing him to take a day off for the first 90 days, etc.  I would also carefully monitor his attendance and performance.  This could very well solve itself quite soon if his behavior becomes an attendance or performance issue.

  • I agree with the person above about putting rules in place and monitor everything if and when he were to start. I know it may seem like red flags especially the timing when starting with a new employer but at the same time it can happen. He was being proactive and letting you know.

    I've been in his shoes. Last year, 2 people passed within 3 days of each other in 2 different cities. The year before 2 people passed within 3 seeks. It happens.


  • I totally agree with the others.  I would give him one more chance and as stated put some rules in place and make sure he understands your policy about absenteeism.  Other than that I think since it is only a matter of days that he is supposed to start it might be easier and less expensive than trying to find another candidate, especially since you don't have anyone on deck.

    Not trying to be the pessimist, but if he postpones his next start date, then I would say that he might have another offer on the table somewhere else and is waiting for their answer.   

  • I also see a lot of red flags with this situation.  To me, it sounds like he is interviewing with another company and waiting for them to make him a decision and/or offer.  What level candidate is this person?  I agree with running it by counsel, but I would let the candidate know that he needs to start with the company on 10/23 or you are going to re-open the search and he will be considered again with other candidates.  I would tell him that, although you are sorry about his family circumstances, it's a business decision and the position needs to be filled.
  • I can see this both ways.  If you want to see if this is the truth then tell the person you would like to send something to the family (flowers, plant, fruit basket, etc.) and see if you can get the name of the hospital where the woman is.  We send stuff whenever something happens so this would not be out of the ordinary for us. 
  • Thank you all for your responses they are very helpful. 

    Our concern is that it is harder to term someone than if we were just to withdraw the employment offer.  We are located in Oklahoma and are an at-will state.  This candidate was not employed at the time he accepted our offer and had not worked in a couple of months due to his company closing. Are we at risk for a lost wages claim or any other legal issues?  Anyone experience a similar situation?

    One of the managers would like to go ahead and give him another chance but write up the situation and let him know that he will need to abide by the 90 day introductory period (no time off) and have him sign it when he starts. Thoughts?

    Thanks again everyone.

  • If this were a current employee who had been with the company for 3 months, what would you do?

    That's what I would do.

    Several things to consider here are that your employment and employment offer is at-will. You need no reason to terminate, as long as you are following applicable laws. There should be no lost wages claim since he was never employed. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

     With offering him additional chances and then imposing a 90 day probationary period, I would make sure that it is consistent with other situations. If you do not impose a 90 day period on everyone, you could be leading to a sticky situation by doing it to this person. Consistency is crucial with employment, as you well know. Make sure that the entire process has been well-documented for any potential employment discrimination claims that may potentially arise if you decide to move to a different candidate or repost.

     If I were you, and the manager was bent on offering him one more chance, I would submit to him, in writing, that the current date offered is the drop dead date. Make sure that it is clear in the letter that you will seek other candidates if he can not make the deadline.

    Certainly get feedback from your company's counsel as to the state laws. I’m in Texas, so they may be a little different.

    Good luck; this is a tough place to be in.


  • Just curious on the final outcome of this.  Did the guy start work or did you withdraw the offer?

  • [quote user="jvanhoozen"] Several things to consider here are that your employment and employment offer is at-will. You need no reason to terminate, as long as you are following applicable laws.[...] <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

     With offering him additional chances and then imposing a 90 day probationary period [...]

    I’m in Texas [...].[/quote]

    At-will does not mean immune from scrutiny.  Be careful about firing people willy nilly because it's "at will".  You can follow the laws all you want but it's the appearance of following the laws in conjunction with the perception of fairness at best or legality at a minimum that will prevent lawsuits.  Retracting job offers is dangerous ground.  Unless they're being retracted by random lottery, one's cause (and even motivation in a pretext case) can always be examined.

    TWC recommends against talking about probationary periods.  It's a topic we've beat up pretty well in these forums for the various reasons why but, in short, if employment is at will during the probationary period, what is it afterwards?  Putting a timer on it and suggesting that there's some difference in the at-will nature of employment before and after the 90 day timer can be dangerous.

  • Thanks all for the input. 

     This is how the situation has played out.  I spoke with the individual and we agreed that he would start the following monday (10/27/08).  I let him know that if for any reason he was unable to start on this date then we would re-open the position.  He stated that this would not be an issue and he would be there. Monday morning 10/27/08 I arrived at work with a message dated 10/26/08 from this person stating that his aunt had passed away and he was returning to Texas for the funeral and would return later in the week. I was able to get ahold of him later that day and let him know that I was sorry for his loss but we would be re-opening the position. Long story short he said that he understood but would like to be re-considered for the position. I let him know that we would consider him with the other applicants and left it at that.

    Side note:   all of the incidences happened during the week but when this person called in it was on Sundays when our offices are closed.

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