A reader writes:
I recently interviewed for a position, and before I was scheduled for an in-person interview, I was asked to fill out an official application. I did so, being completely honest in the background questions that I have a misdemeanor on my criminal record. They had the usual disclaimer saying "this is not necessarily a bar to employment, but lying about it is." I have always taken this to heart, and was up-front on the application.
When they called me a few days later to schedule the in-person interview, I was so happy to see that my record was not going to be a deal-breaker for them. I went for the interview -- an all-day affair with 10+ people, including a C-level executive -- and it went splendidly. I was even happier when they requested my references a few days later and started checking them. I was sure an offer was being crafted at that moment.
All of a sudden, I get an email saying "call me right away" from a senior HR person, no one I had interviewed with. She said my candidacy was being immediately withdrawn due to my criminal record. I was shocked, and told her that I was fully honest on my application, and had assumed that when they processed it and scheduled my interview, that they were implicitly saying they had read everything on it and found it to their satisfaction. She admitted, yes, this was the way it should have worked, but another HR employee had "let me slip through" when they shouldn't have. She said "you never should have made it as far as you did," and even disclosed that someone had been fired for this "oversight"! I pointed out to her that everyone I interviewed with saw me as the best candidate, that the supervisor had gotten to the reference-checking stage, but to no avail; she claimed that no matter who had wanted to hire me, even with the CMO's endorsement, I was not eligible.
My question is: Since they admitted fault by firing the HR person, can I sue for "failure to hire," or some sort of breach of contract? I am in a sense being denied this job, which everyone involved wanted to hire me for, because of their admitted mistake.
I'm not a lawyer, but I don't think you have a case. There was no contract, and companies are allowed to decide not to make an offer at any time for any reason as long as it's not based on a legally protected class. Not everything that's frustrating or dumb or incompetent is illegal.
(Also, if you want other companies to seriously consider you for a job, suing the ones that seriously consider you and then ultimately decide not to hire you isn't exactly going to entice other employers to put you through their hiring process, lest you sue them if you don't ultimately get the job.)
That said, their rule itself might be illegal if you live in one of a handful of states that bar employers from using criminal conviction as a basis for refusing to hire someone.
But assuming you live in one of the many states that do permit this, here's the rest of my answer:
Companies are staffed by humans, who make mistakes. The unfortunate reality is that we're all at risk of being affected by them, including job-seekers. You can be told an offer is coming, only to then learn that the position has been canceled and no one had told HR yet, or that the CEO vetoed your hire because she didn't like your background even though everyone else did, or whatever.
However, in your particular situation, I would recommend asking the hiring manager -- not HR -- whether there's any way to have an exception made, because your criminal record is solely a misdemeanor. Even better if you can say that it's only a misdemeanor stemming from something minor years and years ago. I don't know what your crime was, so that last part may not work, but play up whatever you have to your advantage there. For instance, an arrest for civil disobedience at a political protest is far different from an arrest for shoplifting -- and an arrest decades ago is far different than one last month. So make the case to them for why they shouldn't lose out on a great hire for something that ultimately doesn't impact your strength as an employee.
And take your case to the hiring manager if you can, rather than HR, because HR is often (but not always) focused on rules, while hiring managers are often (but not always) focused on results.
But if that doesn't work, all you can do is move on.
Now, was the company wrong to overlook this information and waste your time? Yes. Should they at a minimum apologize to you for this and not act like you did something wrong? Yes. Is their rule illogical to begin with? Sounds like it, especially if it allows for no case-by-case judgment.
But the world is full of incompetent people, and some of them hold positions of power when it comes to hiring. If you can't go around them to get the decision changed, you just have to move on -- and maybe you just dodged a bullet, because who knows what other inflexible rules they may have that would have made your life hellish as an employee.
Friday, January 1, 2010
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23 comments:
Something else that wasn't mentioned, but is important, is the nature of the employer's work... and the job itself.
A misdemeanor might be nothing. But it's a lot more of something if you're talking about serving as a security guard, a bank teller or some other similar type of role.
And this is why in most cases HR never gets the proverbial seat at the table. Blindingly and dogmatically enforcing policies that may not be in the best interests of company, because the department does not have the institutional fortitude (or HR bench strength) to implement policies requiring greater discretion.
How highly you think that CMO is going to think of the HR department after they torpedo her preferred candidate over something she doesn't consider relevant?
The Equal Employment Opportunity Commission (EEOC) says that a person cannot be denied employment based on a criminal record alone. Instead, the decision to hire or not must be based on a “business necessity,” which requires the employer to consider:
* The nature and gravity of the offense or offenses.
* The time that has passed since the conviction and or completion of the sentence.
* The nature of the job held or sought.
Sorry OP, this likely isn't the reply you're looking for.
I'm going to echo the poster at 5:04 on this one. My impression has always been that a criminal record alone wasn't grounds for not hiring, but that the nature of the offense may be.
Hi everyone, I'm the original poster. To follow up...
--nature of the job. I'm a statistician. Nothing security related in the job, no financial data, no handling of money, etc.
--The nature of the offense. According to the HR rep, they automatically refuse any candidate with a "crime of dishonesty" charge - mine was shoplifting. I almost laughed when she was explaining to me how "bad" my crime was; she gave examples of things that wouldn't have been as "bad", like drunk driving, assault, domestic violence, child neglect, or weapons possession! Evidently, any range of crimes that hurt or endangered human beings were preferable in their minds!
--Going directly to the hiring manager. This is a good point, which I may try, particularly since the position is still unfilled. By the way the communication proceeded, I'm pretty sure that the folks who interviewed me, including the hiring manager, didn't know why I was removed; it seemed like they were simply told to stop communicating with me and forward all questions to the HR rep.
I did particularly ask the HR person "so...even if these managers and directors and C-levels want to hire me, no exceptions can be made?" She assured me that no, not even the president or CEO could override this rule to get their candidate hired. However, as someone points out, the C may not know they were being trumped by HR in this way, and may be quite upset about it. I'm thinking I should contact the hiring group directly and tell them all this whole story - why I disappeared, and how HR is usurping their authority.
Thanks for your thoughts.
The EEOC guidance on this is somewhat confusing. The EEOC says that companies can use criminal convictions as the sole reason to disqualify an applicant IF the company can show a “business necessity” for that policy. And "business necessity" has been left pretty vague; an employer can argue that any conviction is job-related to the extent that it makes you less trustworthy, for instance.
The EEOC does direct employers to consider “the nature and gravity of the offense or offenses for which the applicant was convicted; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought.” They also say: “Conviction records may be considered in the employment decision as evidence of conduct that makes an individual unsuitable for a particular position. However, where there is a disproportionate impact based on race or national origin, the employer must demonstrate that it considers the relationship of the crime to the position sought.”
OP, your follow-up makes it sound even more like this may be a rogue, overly-rules-focused HR person. I'd definitely reach out to the hiring manager directly -- just do it in a calm, non-accusatory way. You want to look like the professional, and let them draw conclusions about this HR rep on their own.
So they’d hire you if you were an angry, violent, drunk, gun-toting, wife-beating, child abuser? Umm, do you still want to work there? Sure, no one would steal your stapler (“We don’t hire thieves”), but I’d watch my back in the parking garage if I were you.
This is o.p. again....yes, she did give me those examples, that's why it was almost laughable..."see, if you had done something _minor_, like kill someone while driving drunk, we wouldn't have a problem. But because you did something AWFUL like deprive a multinational corporation of .000000001% of its hourly child-labor-generated profits, you just don't deserve a job". Ah well, I'm clearly letting my politics leak out here, which are a wee bit aside from the original issue.
As long as consideration (read opinion)can influence the decision, beating this horse won't change the outcome.
The HR Department made more than one mistake. The should have never told the candidate they let him "slip" through. They could have disqualified him and not drawn such attention to themselves.
That aside, if the company has made a decision that their policy is not to hire anyone with this type of offense, the policy should stand. Making exceptions for anyone opens a huge can of worms. It's best to stick to an all or nothing approach with a policy like this.
Is anyone else bothered by the fact that the OP thinks that shoplifting is no big deal? As an HR person, I would like to know when the crime occurred and how much property was stolen, whether or not jail time was served, and whether or not he/she was still on probation or if there had been any probation violations. The examples given by the HR person of acceptable crimes are stupid, but I have a feeling that the OP is not providing the full story. And, do you really want an employee who doesn't think stealing is a big deal because it doesn't hurt the big company that much? So when he starts taking things from people who make more money than him is that a big deal? Shoplifting definitely speaks to a person's character.
I don’t think the issue here is if shoplifting is a “big deal” (although I agree that getting drunk and running someone over is a bigger deal). Applications require you to include the details of the conviction, so HR knew whether he stole a Spice Girls CD when he 19 and stupid or ripped off an iPod last month, even if we don’t. It was a misdemeanor, so I doubt this guy’s the next Bernie Madoff.
The issue is that the HR screening process failed on several levels. If they hire this guy anyway, they need to rewrite the conviction policy to be fair to all other candidates. That would require HR to use their brains, which they haven’t done much yet. If they reject him, not only is management losing (in their opinion) an excellent candidate, the company is opening itself up to EEOC troubles. Of course, if HR had used their brains before, they just would’ve sent him the stock “we chose a more qualified candidate” letter and no one would’ve been the wiser. According to their standards, a candidate without a criminal record would be more qualified.
So HR was dumb enough to let a criminal “slip through,” fire someone for it, offer management an excellent candidate, waste everyone’s time, take the candidate away (possibly without explanation to management), and, to top it all off, tell the candidate all about it.
Wow. I’d hate to see how these morons handle payroll and benefits.
Hi, o.p again. First off, I'm a woman. For some reason everyone has assumed I'm a "he".
Also, I would like to express my disappointment that someone has chosen to label me a "criminal", and say that what happened speaks to "my character". I never, ever said shoplifting wasn't a big deal; my point was that shoplifting is distinctly in my mind less of a big deal than the crimes the HR rep recited me as more acceptable in their hiring process.
Do you honestly believe that people cannot make, and recover from, mistakes? Do you really think that I should never be able to get a job? Does that not violate the constitutional idea of freedom from cruel and unusual punishment?
To answer your questions, it was a suspended sentence, no jail time, there was no probation, and and thus no violations of probation, etc etc.
To remind you and everyone, this is a discussion about the merits of an excellent candidate vs. a misdemeanor, and secondly, how HR handles or mishandles such issues. The issue is not my "character" or what you think of it.
Maybe the OP should try to get the conviction expunged from her record.
That way it would be an non-issue.
Depending on the misdemeanor and how long go it was, you may be able to have it expunged from your record, depending on the state.
I'd contact a lawyer.
You know, something similar happened to me, not over a criminal record but over my visa status. I'm in the United States as a part of an exchange program. I'm sponsored to be here, I'm allowed to work anywhere without the employer needing to sponsor me or so forth.
A week after I arrived in the States I interviewed for a job, it went well and I got called to say I had the position. I just had to do a background check and I'd start the following week. The job was in a different state to where I was staying so I made arrangements to move, booked transport etc and then got an email that said: "Sorry, but I am going to have to rescind the job offer due to your visa status." I emailed back to ask for an explanation and she said it was because I needed sponsorship.
I had my sponsor company call and explain to her about my status, which they did and called me back to say I still had a job, don't panic. So I went forward with my background check info and got another email that said. "Your job offer is rescinded." That's all. It was very, very upsetting, especially when I moved into an apartment for the job because she wanted me to start the week later.
Hi, it's OP again....here's the closure. I took AAM's advice and wrote directly to the hiring manager. I said I didn't know how looped in HR had kept her in why I was removed, and I wanted her to have all the necessary information to decide my eligibility herself. She ignored my email entirely, and I have not heard back.
On a better note, I had an interview somewhere else, and in an effort to avoid this sort of problem again, immediately followed up with an email that said "I have a misdemeanor, is this a deal breaker? I don't want to get too far along in this process before I find out if it is." The hiring manager wrote back and said no, we only ask about felonies, and they have since spoke about setting up additional interviews and asking for my references. So nothing is for sure, but it's certainly moving in a positive direction.
As an Ex Human Resource Manager for a Fortune 100 company, regardless of what standard the EEOC promulates, companies will continue to not hire individuals with a criminal record. Overall this is not a good policy. This has only come into the forefront of hiring in the past 15 years. Companies that do background checks are using scare tactics mainly in order to sell their products. The work was no more dangerous then than it is now. It is true that no one wants to work with a murderer or a rapist, but these days a felony charge is lot easier to get, child support, bounced checks, DUI. I hardly think that these people should spend the rest of their lives without a chance of employment. The only way the EEOC can put teeth into this ruling, will be if they put the controls in place to monitor these business practices. Such as making companies report as to how many applications were received with convicion part of the application filled out honestly. Compared to how many were hired. I do not think the EEOC going this far They will leave businesses the ability to advoid this issue. Largely by companies using online applications and the delete button.
This is OP, I'm trying for a second time to post a follow-up to this issue. (AAM weeded me out the first time, I think, maybe because the story doesn't have a happy ending?)
The adventure did not end with the failed offer in this letter. The "new lead" I mention in my last post did pan out to a lucrative job offer which was !surprise! rescinded when they did a background check. Nevermind that the offer was already in writing. Nevermind that two hiring managers and the HR representative had said that a misdemeanor was "no problem". They backed out at a point _beyond_ the last possible moment.
The hiring manager, in pressuring me to start ASAP, had made me quit my existing job before I got the rescindment, and my old job, when I told them what happened, forced me to resign and would not allow me to stay in my existing job, regardless of 3 years of excellent performance reviews. Did I mention I was the sole wage earner and source of health insurance for my family? Yeah.
I'd love to hear again from those law-and-order types who thought I was getting my just desserts.
Anonymous, I don't "weed out" comments unless they're openly abusive of others or spam. You and I have emailed about this issue before, and I'd appreciate it if you didn't continue making erroneous accusations.
Dear Ask a Manager,
Is there any more follow up to OP's
story? This is the most helpful site I have ever read and I was actually feeling somewhat empowered until I read this story, because I have had a similar experience with a criminal history and have since gotten my records sealed but it makes little difference for a healthcare worker.
Thank You Very Much,
unemployed in healthcare
Dear Ask a Manager,
Is there any more follow up to OP's
story? This is the most helpful site I have ever read and I was actually feeling somewhat empowered until I read this story, because I have had a similar experience with a criminal history and have since gotten my records sealed but it makes little difference for a healthcare worker.
Thank You Very Much,
unemployed in healthcare
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