Employment offer rescinded due to background check

[WiscBill]

State = Wisconsin.

During the hiring process, written questions were answered including a background check with questions about prior legal convictions, etc.

Job offer as a groundskeeper was extended verbally, with agreed upon start date.

The DAY the job was to start, the employer called and recinded the job offer. Turns out that they had done a background check and found a 25 (thats TWENTY FIVE) year old incident that the applicant had failed to disclose. This wasn't for any significant crime, but for a fine imposed for a noisy party when the applicant received back in college.

The prospective employer stated that the job offer was being rescinded due to the applicant's failure to disclose the 25 year old fine. They said it wasn't the incident itself and would have hired the applicant if he had just disclosed this.

Meanwhile, due to the job offer the applicant had quit a previous job and is now without any job. Applicant had gone through numerous background checks for prior jobs and other things over the years with no problems. Applicant had not remembered the 25 year old incident, had never reported it on prior job applications.

Is it legal for an employer to rescind a job offer in this manner? Or should they have done any background check before making the offer?

Due to the fact that the applicant quit his prior job, there is significant monetary loss involved here.

Thanks for any help you can provide. I can acquire additional details about the wording of the job application background check or the details of the incident which resulted in the fine, if these are relevant.

 

[Betty]

Yes, it's legal - they did nothing wrong. The person also "lied" on the application whether he remembered the incident or not.

 

[cbg]

What happened when the applicant "forgot" to include the information on the application was that he, intentionally or not, falsified his application. That is a valid and legal reason for the rescinding of an offer. It would also have been a valid and legal reason to fire him had he already started work.

Unless the application specifically stated "within ten years" or something of the sort that would, by the nature of the question, imply that something that happened longer ago than that could be omitted, the applicant has no recourse.

 

[WiscBill]

Thanks for the replies

Thank you both for your replies. I had a feeling there was no recourse here.

What do employers typically ask for on these forms nowadays? Do they ask if there was a conviction? The can't ask if you were ever arrested because arrests do not necessarily lead to convictions. DO they distinguish between a misdemeanor crime (arrest) or a municipal violation (littering, noisy party)? If you have to disclose speeding tickets and noisy college parties, I'm guessing a huge portion of the population would have to disclose these, and probably NOT disclose these (mostly forgetting 20+ year old minor events or remembering them but not realizing a fine for a noisy party had to be mentioned when the application form asked for any prior history of convictions). Any insight you have into what is the 'norm' nowadays would be appreciated.

 

[cbg]

There is no "norm". Different employers have different requirements based on business situtations. A bank is going to have different requirements than a retail store. A retail store is going to have different requirements than a school. A school is going to have different requirements than a hospital. And so on.

 

[tkilburn]

There is no "norm". Different employers have different requirements based on business situtations. A bank is going to have different requirements than a retail store. A retail store is going to have different requirements than a school. A school is going to have different requirements than a hospital. And so on.

cbg -

I have a question about this thread and you being very knowledgable hopefully can answer it.

Would this situation be different if the applicant had disclosed the 25 year old record of "disturbing the peace" and they had not hired him because of this?

I am asking because I hear all the time about how we should be careful what disqulifies and applicant in regards to a background check. Specifically whether or not the recorded offense has anything to do with the job for which the person is being hired.

So many times on here, I see posters pose questions such as these and are advised they have no actionable cause (which I agree with) but then in all the seminars, literature etc. there is so much caution to employers about these same type of things bringing problems.

So is it just to prevent getting wrapped up in costly battles that will likely eventually be won?

Thanks,
Tracy

 

[cbg]

Tracy, the answer to your question is to a certain extent state specific. In all states, an employer may legally terminate (or refuse to hire) because of a falsification. However, in some states, an employer may only refuse to hire BECAUSE OF a previous conviction in certain circumstances. For example, in some states an employer may ONLY refuse to hire BECAUSE OF a previous conviction if the conviction has a substantial relationship to the job at hand. Example - if the applicant was convicted of embezzlement, it would be legal to refuse to hire him/her for a job as a bank teller or a retail store clerk, but it would not be legal to refuse to hire him/her for a pre-school aide or an assembly line worker. On the other hand, if they had been convicted of child molestation, it would be legal to refuse to hire them as a pre-school aide, but not for a bank teller or retail store clerk.

Not all states have such a law (though if some future president sees fit to appoint me Labor Secretary it's one of the changes I'd like to see across the board). In some states, an employer may legally refuse to hire due to convictions, period.

But the real meat of your question comes down to this. The EEOC has determined that some races are more prone to be convicted than others. Because of this, an across-the-board policy of refusing to hire anyone with a conviction CAN (not necessarily will) be seen as having an adverse impact on certain minority races. Because of this, such policies are ill-advised, if not actually illegal. The overall applicant pool is certainly a factor, which is why it's not necessarily going to be seen as an adverse impact. But the possibility certainly exists.

Hope this helps!

 

[tkilburn]

Thanks!

Thanks so much for the explanation, it makes a LOT of sense and you have really helped to clarify the issue as I knew you would

 

[cbg]

Glad I could help.

 

[WiscBill]

What incidents have to be reported?

Thanks again for your replies. I am learning a lot.

1) If the incident from 25 years ago HAD been reported on the background check, do you know the law in WIS? Would this employer have had to hire? Or would they have had the opportunity to rescind just due to the incident? Incident had nothing to do with the job being offered (groundskeeper).

2) What level of incidents HAVE to be reported? You said any failure to disclose anything constitutes falsification. I think some of the uncertainty is what level of minor incidents (at least they seem minor in 25 year hindsight need to be reported).
Here are some examples, which would you say HAVE to be reported?

a) - conviction for misdemeanor - shoplifting - arrest
b) - conviction for local ordinance violation - disorderly conduct
c) - conviction for ordinance violation - noisy party - no arrest
d) - citation / fine for littering / jaywalking / alchohol in park
e) - speeding ticket

I think a) is a no brainer, but the others I think people may not report because they don't consider them 'crimes' that warrant being reported.

 

[cbg]

I'm not where I can check the state laws at the moment, but my memory is that WI is one of the states that requires there to be a connection between the conviction and the job, if the applicant is to be turned down on that basis. (Beth may know if she happens by.) However, that does not mean that the employer would HAVE to have been hired had the incident been reported - an employer never owes an applicant a job and is never compelled to hire. It does mean that the incident could not have been used as the basis for a rejection.

You're not quite getting it. It's not that there are certain situations that always have to be reported; it's based on what the exact question on the application is. For example - EVER means EVER. A lot of people think that when a question asks, Have you EVER been convicted of...that means about the last seven to ten years or so. It does not. Ever means ever. If you have at any time had a conviction at any point in your life, then you would need to include it if that is the question. However, if the question says, Have you in the last ten years... then you do not need to include a conviction from 15 years ago. If the question asks only about felonies, you do not need to include any misdemeanors. However, if the question asks for any convictions, you need to include both. And so on. I would NEVER recommend assuming that a conviction of any sort is "too minor" to include.

 

[Gadfly]

An employer does not "have" to hire anyone. The position can go away. The employer can find an applicant that is a better fit than you. And yes, there are people with squeeky clean lives that the employer may want as opposed to someone with an incident on their record. There ARE specific reasons (race, color and all that) that are not allowable for excluding a person, but nothing you mentioned rises to that leve.