Behind the scenes of a rescinded job offer

On September 24, 2018

In the September 25, 2018 Ask The Headhunter Newsletter an HR worker reveals how a faulty HR process led to a job offer being rescinded after the applicant quit his old job.

Question

rescindedI work in Human Resources (HR). During our on-boarding process, we send prospective employees for a drug screen and run a background investigation and, if the job requires driving, a motor vehicle record (MVR) check. The background is launched when the applicant electronically completes an authorization.

We had planned on hiring a guy, when three days before his start date he had still not signed the authorization. So I ran the part of the background that I already had authorization for, and saw that his MVR was horrible. He had DUIs, super-speeder violations and more.

He’s already given his notice to his old employer, and we can’t hire him. I think he avoided signing the background authorization to hide a bad record.

We had to rescind the position as we don’t have any positions for a non-driver. I feel bad about this but I also think he should take some of the responsibility. What do you think?

Nick’s Reply

It’s important to consider the critical path of your company’s hiring process. That is, which steps are critically dependent on earlier steps being completed satisfactorily? And, who is responsible for those?

The critical path to making a hire

You don’t say explicitly whether you made this applicant a bona fide job offer. But I think it’s fair to assume you did based on two other pieces of information you shared.

  • You started the on-boarding process. You would not have done that without two critical steps being completed first. You had to extend a job offer and he had to accept it.
  • He quit his old job. He would not have taken that critical step unless the two aforementioned critical actions were taken first — an offer was tendered and accepted.

Please note that I’m not putting any specific order on these critical steps, though of course there is a necessary order. In any case, when you made that job offer and it was accepted, you had a contract. The deal was done.

A job offer is a contract

So, where does that leave your company and the HR person who is responsible for the hiring process? In a bad, indefensible spot, I think. You made and broke an agreement. A rescinded job offer is a broken contract.

Two other critical steps in this hiring path are:

  • Obtaining authorization to conduct a background investigation.
  • Conducting the investigation.

Clearly, both of these critical steps must be done before you can hire anyone. And the investigation — a critical step — brought the entire process to a screeching halt when you discovered the problems, as it should. That’s why that step is on the critical path to hiring, right?

Where you blew it is that you apparently jumped ahead. You made an offer — a contract — before obtaining authorization to do the background check, and before you had any investigation results. You acted without due diligence.

Why would any employer do that?

Due diligence

Due Diligence: Don’t take a job without it.

See Fearless Job Hunting, Book 8: Play Hardball With Employers, p. 23.

The applicant’s mistake is that he followed your lead. He, too, failed to perform due diligence to ensure your company was acting in good faith. He didn’t double-check to make sure you had followed your own critical path before he took the ultimate critical step: He quit his job.

Why would any job applicant do that?

No job applicant can afford to quit their old job, or to trust an employer or HR rep, unless they are certain they have a bona fide job offer.

A bona fide job offer

A job offer is bona fide when it is:

  • Neither specious nor counterfeit; genuine
  • Made with earnest intent; sincere
  • Made in good faith without fraud or deceit

You, as an HR representative, know your company cannot hire someone with a bad record. So, why did you make a job offer before checking? There’s no good faith when you lead someone to quit a job so they can start work with you — then pull the rug out from under them. (See HR Managers: Do your job, or get out.)

A rescinded offer is a broken contract

You said: “We had to rescind the position as we don’t have any positions for a non-driver.”

That’s not why you rescinded the offer. You rescinded because you didn’t do your job properly. The main fault is yours, and it could get your company sued. (For an attorney’s take on this, see Job offer rescinded after I quit my old job.)

You should never have made an offer before you conducted the investigation. The investigation came first on the critical path to making an offer, before the hire quit his other job, and before you began on-boarding the new hire.

Hire with integrity

A company should hire with integrity. It should follow a sound process that ensures a healthy deal will be struck that is good for both parties. That requires following a series of steps in proper order, to protect both parties. (See Protect yourself from exploding job offers.)

Here’s the critical path you should follow. Staple it to your office wall where you can see it all the time. Make sure everyone involved sees it in advance and signs off at each step. None of these steps should be taken until all previous ones have been completed:

  1. Make sure the position is open and fully funded with an appropriate salary and benefits.
  2. Conduct interviews.
  3. Decide your favored applicant is qualified and that you want to hire them.
  4. Conduct appropriate background investigation(s) after obtaining authorizations.
  5. Confirm that all information you need about the candidate has been gathered and logged.
  6. Make a bona fide offer in writing that includes all terms, signed by an authorized representative of the company.
  7. Confirm the candidate’s bona fide acceptance of the offer and terms in writing.
  8. Notify the candidate that the hire is confirmed and that they should resign their old job.
  9. Conduct your on-boarding process.
  10. New hire starts work.

The applicant was foolish to accept a job offer before confirming that your company’s critical path had been completed. He was disingenuous about not signing the authorization for the background investigation. He was downright stupid to quit his old job before ensuring the new job was solid.

So he, too, bears responsibility. Caveat emptor. But shame on you as the employer for letting the matter get to a point where you had to rescind the job offer.

The employer owns the hiring process

Your company is going to spend money to hire someone. You start the ball rolling and control the process. You own the process.

Don’t know how to properly check out a job candidate? See References: How employers bungle a competitive edge.

It doesn’t matter if your investigations reveal the candidate is an axe murderer. It’s still not his fault that you didn’t do your job prior to issuing a job offer. You failed to conduct due diligence (the checks and investigations). In this case, your process should have stopped dead at step (4.) above.

You tacitly if not explicitly encouraged him to quit his job and relinquish his pay based on your assurance (the job offer you gave him) that he could rely on you to hire him. No one deserves that. (If he’s an axe murderer and you don’t figure it out prior to making him an offer, then shame on you.)

Rescinding a job is not an option

Please review the 10 steps in the list above. Nowhere is there a “Rescind job offer” step. It’s a terribly embarrassing option. Rescinding a job offer is a last resort that you — and your company — will pay for with your reputations.

You need to sit down with your top management to develop a critical path to follow when hiring. The fact that you were three days from his start date when you figured all this out reveals a shocking problem at your company. (See Smart Hiring: A manager who respects applicants (Part 1).)

Rescinding a job offer that your company never should have made is unacceptable.

Is it ever legitimate to rescind an offer? When — and why? Have you ever rescinded a job offer that you made to an applicant? Have you ever had an offer pulled out from under you? Was it a legitimate action? What steps belong on the critical path to completing a hire and who is responsible for them?

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Your First Job: 20 pointers for new graduates

On September 17, 2018

In the September 18, 2018 Ask The Headhunter Newsletter a new grad’s dad expresses concerns that employers aren’t rewarding highly credentialed new graduates fast enough.

Question

My son, who earned an advanced STEM degree, was hired by a firm which was highly impressed by his education, and emphasized how important it was to have someone with his qualifications joining their team.

But several months into the job, he realizes that the work he has been given could easily be done by someone with only a bachelor’s degree. He is upset that he is not being challenged, but my concerns are more prosaic and practical. If he doesn’t have the opportunity to use his ability to “hit home runs” for his employer, there’s really no reason for them to reward him handsomely, and he isn’t developing the skill set that could cause another employer to pirate him away, and reward him handsomely.

So, my question is, did the employer deliberately lie to my son to get someone with his qualifications to join them, or did they lie to themselves, like the owner of a diner I know who sought out a Paris-trained chef, when all he needed was a guy who didn’t burn the eggplant?

Nick’s Reply

You’re blessed to have a son with an accomplished academic background. But I’m afraid you’re suffering from the same malady a lot of Millennials seem to have. They expect to hit the ground on their first job “being challenged,” “tackling great opportunities,” “hitting home runs,” “getting rewarded handsomely,” and quickly “developing new skill sets that will just as quickly get them recruited away” from their first employer… and “getting rewarded even more handsomely.”

Right out of the gate.

Are schools suggesting to students that wild success will be their experience once they get a job? Or are schools failing to give their students a realistic idea about the roadblocks they’ll encounter? Maybe they’re not teaching them how to recognize roadblocks or how to deal with reality.

Expectations about new jobs

It’s altogether too easy to offer sanctimonious advice to young people about the realities of a first job. In fact, I discourage that because it’s the naivete of every new generation that frees it to create something new under the sun. I love watching young people pull off great feats because they don’t know what is supposed to be impossible — so they risk everything to attempt anything. I experienced that when I started my career in the nascent Silicon Valley. I expected great success while I stumbled over obstacles I didn’t expect to encounter.

But I think attitudes about success are another matter from expectations about jobs. When I get a chance to speak to groups of students and new graduates about jobs and careers, I try to give them an honest picture of the roadblocks they will encounter. It may seem harsh, but I think it’s the truth.

The underlying questions here are whether the realities of work are roadblocks — and what new grads can learn about how to deal with them. I’m offering no answers. Just some pointers that I hope inspire a fresh new generation of workers to develop healthy attitudes about success so they can pull off the impossible.

20 pointers for new graduates

Whatever you’ve been told by the school you attended, this is likely what new graduates will find at their first jobs. Be prepared.

  1. Your academic credentials get you hired, because you have little or no experience that an employer can judge you on.
  2. Once you’re hired, your credentials don’t matter.
  3. Once you’re hired, what matters is your ability and willingness to learn the job and business you’re in. Especially if it’s your first job, that takes all your time, devotion and hard work.
  4. When you graduated from college or grad school, you were at the top of your academic game. You were a star with great prospects.
  5. Once you start work, you’re on the ground floor, on the bottom rung, low person on the totem pole, the plebe, the newbie, the unskilled and clueless neophyte that needs to prove themselves all over again.
  6. A job is not school.
  7. School is where you pay to learn what you want. A job is where you get paid to do whatever your employer needs you to do.
  8. In school, the work you do accrues 100% to your knowledge. At a job, the work you do accrues 100% to your employer’s profits. Hopefully, some of that accrues to your acumen. Most of it won’t – because that’s not why you were hired.
  9. Employers don’t pay you to be challenged. They pay you mainly to do boring work.
  10. The job you’re doing could probably be done by someone smart with less education. But they hired you because they expect you’ll go farther than someone with less education – if you’re willing to work as hard at your new job as you did in college.
  11. Employers don’t hire you out of school because they want home runs. They hire you because they want someone to carry water, clean the bases and tidy the dugout. They don’t tell you that in school, because if they did you might not pay to get an education.
  12. Your employer has people that hit home runs – but damned if they’re going to hand you a bat right out of school because they hope you’ll hit .500.
  13. Your employer won’t put you in the game before you prove you can field 10,000 balls flawlessly. Pro athletes spend most of their time practicing.
  14. The challenge when you start the job is to do what you’re told by the people who are paying you. They will expect you to do that job a long time because they really don’t want to start all over again with someone else.
  15. You will be paid what they promised you – and it’ll likely be far from handsome.
  16. Your reward is not your salary. Your reward is being permitted to come back each day to keep doing your small part – not to swing for the bleachers.
  17. Practice will take years, a step at a time – and you don’t get special rewards for making it to the next step. See (10).
  18. You won’t be worth recruiting away for a long time. Trust me. We headhunters don’t get paid big fees to recruit newbies. There are millions of you. Hiring any one of you is free.
  19. You’ve heard the rule about how it takes 10,000 hours devoted to doing one thing before you become an expert. Do the math. Even if you get to spend half your work day practicing that one thing, it will take years to become the expert that another employer will recruit. (More likely, you’ll spend 90% of your time on busy work.)
  20. The good news is, if you focus on doing your job so your employer profits handsomely from it, your skills will grow and you will be successful.

Roadblocks or realities?

I don’t think the employer lied to your son or to itself. Rather, someone — His school? The world? — lied to your son when it suggested work is about being challenged, hitting home runs, getting rewarded and getting recruited for a million-dollar salary. That’s not what work is about.

New Grads: How to get in the door without experience

New grad gets railroaded out of new job

Did this new grad ruin an opportunity?

Do employers haze new college grads in interviews?

Those things are what expertise and success are about, but first come the realities and the roadblocks. The things your son wants for himself he’ll earn through persistence, patience, dedication, apprenticeship and hard work. Likely one step at a time.

Don’t be confused about the owner of that diner. He will hire a Paris-trained chef when he can – because most kids fresh out of school will burn the eggplant, and that will quickly put a diner owner out of business.

Please tell your son to give his career a chance. There are roadblocks and there are realities. He cannot deal with them by pretending they don’t exist.

Am I being too harsh on ambitious new grads? Probably. I don’t mean to sound discouraging. But I’m afraid misconceptions abound about big bucks and quick success. What would you change in my 20 pointers? What would you add? More important, what are the best ways to overcome or avoid some of these roadblocks?

If you’re a seasoned professional, this is your chance to advise and mentor new graduates like this reader’s son. Please remember: You’ve been through it. Getting a career started is painful. Maybe we can impart some lessons while lessening the pain.

If you’re a new grad, what do you want to know about your first job?

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Employee quits, boss wants her to refund employment agency fee

On September 10, 2018

In the September 11, 2018 Ask The Headhunter Newsletter an employee placed by an employment agency quit, and the employer wants the placement fee refunded.

Question

employment agencyAn employee quit without notice after five months. Her explanation was that she never wanted to stay at this job from the start. We paid a hefty agency fee for this person. She never signed any paperwork with the agency, and the contract stated that employment is “at will.”

Do we have the right to go after the employee to pay us back for not being truthful? Or do we have to go to the hiring agency to see if we can get our money back?

Nick’s Reply

An awful lot of readers are laughing at your story right now, rolling their eyes, and thinking, “Serves you right!”

Why would anyone laugh? Because the recruiting and hiring process usually blows up in the job seeker’s face — not the employer’s.

But I’m not here to laugh at you. The rise of intermediaries in the hiring process has introduced mass confusion, frustration and finger-pointing on every side — employers, agencies, employees. I’m afraid everyone is culpable.

You paid the employment agency, not the employee

I can’t believe you’re serious about recovering the fee you paid to the agency from the employee. I doubt you have a contract with the employee that provides such recourse. If there’s a contract at all, it’s between your company and the agency. Take it up with them.

If the agency does a good job for you in general, don’t blame them. Once you’ve got the hire for five months, whatever happens next is a management problem, not a placement problem. You chose to make — and keep — the hire.

But first consider the pickle you’ve put yourself in.

The problem with middle men

Employers expect someone else is going to handle recruiting and hiring for them, then are shocked when things go awry. Most agencies play fast and loose because they get paid to fill a job, not to deliver the best hire, and everyone suffers for it. Job seekers suspend their common sense when someone they don’t know dangles an “opportunity” in front of them. The introduction of middle men in hiring creates chaos, poor management and terrible decision making.

In this case, everything depends on the contract you have with the employment agency, and on whether there is a guarantee on the placement that provides for a refund.

The number of employment agencies — which go by all kinds of monikers — has exploded, with the result that employers often have no idea who they’re dealing with. (See They’re not headhunters.) It’s an unusual occurrence, but it’s possible the recruiter and your new hire were in cahoots and planned the “placement” to last only until the fee guarantee expired. Then they split the fee you paid and moved on to the next sucker company. I always explore this possibility when a new hire lasts just past the guarantee, which is usually between 30 and 90 days.

But I repeat: If your agency does good work in general, then they may not be the problem at all.

There are some measures you can take to avoid the most obvious problems with agencies.

Get a guarantee from employment agency

Always have a written contract with the recruiter that includes a pro-rated guarantee period. That is, if the new hire “falls off” for any reason — whether you fire them or they quit — make sure you can get back some or all of the fee you paid. Such guarantees usually run 30-90 days and will offer a refund or replace the employee. Good agencies will negotiate reasonable terms with you.

If the contract suggests the hire will be responsible for any refund to you, run. That’s unethical and unscrupulous, and possibly illegal.

Get a no-poach agreement

Your contract with the agency should prohibit poaching. That is, the agency cannot recruit the person it just placed with you — or any other employee at your firm — for a year or more after the last placement the agency made at your firm. This can be even more restrictive if it prohibits placing anyone who has left your firm in the past year or more. Some headhunters don’t like such clauses, but they promote healthy business relationships.

I would nose around. Did the agency that placed the employee with you recruit her out or place her elsewhere? Good agencies never do that.

For job seekers:

Can an employer charge you for quitting?

How long does the headhunter control me?

Understand that “at will” employment cuts both ways

As I said above, it’s usually employees who complain about being terminated without any explanation in states where employment is “at will” by law. What’s your company doing to make sure it’s a good place to work?

Barring some kind of contractual obligation or regulation, you can no more prohibit someone from quitting a job than you can be prohibited from terminating them.

Check the agency’s references

For employers:

How to Judge A Headhunter

Recruiting: How to get your hands dirty and hire.

Check the employment agency’s references as well as the specific recruiter’s references before you do business with them. I’ll estimate that 90% of pitches you get from recruiters will end when you ask them for references. Work only with recruiters whose skills and reputations you have confirmed, or don’t be surprised at the consequences.

What to do next

At the very least, I’d call the agency in for a face-to-face meeting to discuss what happened as well as the terms for next assignment. Assess whether you trust the recruiter. I would not necessarily blame the recruiter if they did everything else right.

If your relationship with the agency is at e-mail’s length because they’re not in your city, then consider the value of working only with local agencies.

But don’t expect any agency is going to refund your money after five months. Read the refund deal in your contract. Some of this falls on you, but I understand your frustration. New employees feel the same way when they quit a job for a new one — only to get fired suddenly a few months later without explanation.

If you learned too late that the employee didn’t really want the job from the start, I suggest you improve your recruiting and interviewing processes — and how you manage. Always remember that while you can fire at will, an employee can quit at will. (This depends on the laws in your state.) I’m not a lawyer but my guess is, if she did the work and you paid her for it, no one is obligated to continue the employment — you or her. It’s up to you to get to know your workers well.

You should check with a lawyer so you’ll know better next time, but chalk this one up to experience.

This is one reason why it’s worth cultivating your own pipeline for recruiting through your own trusted sources who will put their own reputations on the line when they recommend someone. If you’re going to use an agency, it’s best to meet a good one through your trusted sources before a lousy agency takes advantage of you.

If you’re an employer, what’s in the contracts you sign with employment agencies? How do you protect your company? If you’re a headhunter, recruiter or employment agency, how do you help ensure your client’s (the employer’s) satisfaction? If you’re the hire who was placed by the agency, would you consider refunding part or all of the recruiter’s fee if you decided to quit the job?

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