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She Can't Start

Question:

The day after we offered an applicant a job and she accepted, she asked us to delay her start date and allow her to work part time for her first two weeks. We asked why and she explained she needed surgery.

We rescinded our job offer on the spot, saying we needed someone to start right away. We didn’t expect her reaction, which was to say we couldn’t do that, that her surgery was related to a disability.

We feel this applicant deceitfully failed to tell us during the interview she couldn’t start right away even when we told her we needed someone who could hit the ground running.

We want to offer our number two applicant the job – we can, can’t we? Or do we need to reconsider this?

Answer:

From your standpoint, this applicant withheld information from you. You leaped to that conclusion although she might have learned she needed surgery after your interview. If she knew prior to interviewing, she may have feared you would reject her application if you had known.

The moment you made her a legitimate job offer and she accepted it, she became your employee. Although employers in Alaska can fire employees for any reason and may fire an employee who lies during the application process, they can’t do so if the termination would discriminate against a protected category, such as age, sex, race, national origin, pregnancy, religion, parenthood, marital status or disability.

Further, the Americans with Disabilities Act (ADA) requires employers to accommodate disabled employees. As a relevant example, when the air transport communications firm SITA rescinded a job offer after learning their new hire needed what your new employee does -- a delayed start date and an initially part-time schedule due to cancer surgery – the federal Equal Employment Opportunity Commission (EEOC) sued SITA for wrongful discharge.

While your applicant has a possible case, your company has a potential defense. Your company’s business need for an employee that can start right away may allow you to rescind an offer to an applicant who can’t work. If you choose this defense, you’ll need to prove it would cause your company great hardship to wait a week for your new hire to start and two additional weeks for her to begin a fulltime schedule. Can you?

Meanwhile, your applicant and you each made mistakes. She omitted information you expected she would have told you. As a result, you felt she lied and this poisoned her employment from the start. Although applicants with certain conditions feel the truth may destroy their chances of getting jobs, they risk dooming employer relationships and the jobs they land if they lie overly or by omission.

You leaped to the potentially false conclusion your applicant lied. What if she learned she needed surgery after your interview – or hadn’t yet processed her doctor’s news prior to your interview and your job offer forced her to deal with the need to immediately undergo surgery?

You may have also made the classic interviewer “talked too much” error. You told this applicant you wanted an employee who could hit the ground running. If you had instead asked “if hired, when can you start?” and “are there any reasons you couldn’t maintain a 40 hour schedule?” you might have learned her situation earlier.

Third, you may have discarded a great employee. If she outshone the other applicants, her long-term performance might outweigh a delayed start.

Finally, if this new hire evaded fair questions or intentionally hedged her answers during your interview, include that in your reconsideration. Her disability and delayed start don’t justify rescinding your offer. A lack of honesty does.

© Lynne Curry, April 2014, www.thegrowthcompany.com

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