Rescinding job offer
LindaS
1,510 Posts
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
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
Comments
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
Your friend and the company would benefit from a little management training.
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.
Has this manager ever been trained on the process of interviewing and documenting?
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
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.
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.
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.
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