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 She said my candidacy was being immediately withdrawn due to my criminal record.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.