Withdrawal of Job Offer

Sue2

We have a person working for us through a temporary agency. We advertised a clerical job opening (same one temporary is working), temporary applied, and the manager offered the temp a fulltime job. The temp had a post offer physical and drug screen. Now the manager is concerned that the fulltime temp cannot do the job. Turns out the temp has migrane headaches. (Temp has told the manager this and in fact has worked with headaches.) I tried to get the manager to tell me specifically why she feels the employee cannot do the job. She states the temp doesn't seem to be able to "think clearly sometimes" and she's not sure the temp can "handle the work." The manager would like to withdraw the job offer or at least use the temp for a while longer through the agency before hiring fulltime so that the temp can be evaluated. The temp is suppose to begin fulltime employment with us on Thursday! What liability do we have if we withdraw the offer? I don't have a warm, fuzzy feeling about this!

WT

I would guess your liability would be that you "perceived" the employee to be disabled due to headaches. If so, under ADA you would have the duty to accommodate. If you withdraw a job offer that would appear to be a negative employment action based on a disability. Watch yourself.

Sue2

WT,
Thanks...that's my concern also.

stilldazed

Agree that the situations sounds risky because of the order of the sequence of events you have presented.

To clarify, you don't have a duty to accomodate under ADA. You have a duty to 'consider' 'reasonable' accomodation and decide.

I would say that because you are at the front end of the process right now, do everything you can to ensure that the decision is being based on skill and job requirements. Take any/all references to illness out of the process. Also, consider any characteristics in the situation that may be protected--color, race, age, gender, etc. You can withdraw the offer and extend it to a better qualified candidate, but your paper trail should be clear. You may get challenged and, consequently, need to defend the decision.

Best wishes,

Sue2

The temp has worked for us through the agency for 3 months and yesterday was the first I've heard of the concern about her not being able to do the job. I just found out through another source that the temp did not work yesterday and that makes me even more concerned that the manager's "conclusions" may not be based totally on skill. The temp worked for Walmart for six years doing similar work. References were ok.

WT

I often find that my managers seize on some odd fact (like headaches) to justify a decision that is really based on something else entirely that they do not want to tell me about. Essentially, they are just throwing dust in the air. If that is happening to you, try to pin the manager down and find out what the issue really is all about. Fearing that somebody cannot do a job that they have been doing already for a period of time is not logical. Try to find the missing piece.

mwild31

[font size="1" color="#FF0000"]LAST EDITED ON 08-16-06 AT 10:18PM (CST)[/font][br][br]First, I'll state the obvious. Something didn't go right during the interview. Not all interviews go perfectly and you can't always predict how the employee will do, however, for the problems to start showing up so quickly tells me that maybe the decision to hire was made too quickly. I would pursue why the employee did not show up to work today and then review her attendance history up to this point. If her attendance has been good, then I would say that the manager will have to work with the employee & follow through with progressive discipline if the employee cannot do the job. I say this only because the reasons the manager are giving seem to stem with the migraine information & not necessarily with how she did during the interview & performance up to the job offer...

E Wart

One thing no one has mentioned. I hope you contacted the temp agency and let them know you are going to offer the job to the temp. Otherwise, you may have to pay the temp agency for "buy out'. Even though temp applied on their own, they sig with the agency and you do too. Normally they have to work for the client for a certain number of hours (120 or 180) before they can go on the employers payroll. Also, you may still have a "buy out/transfer fee".
You met this employee through the agency so you should do them the courtesy of contacting them. I think it is something like 2 years that the employee can come to you to be hired full time without involving the agency. Check this out.
E Wart