07/12/2023
What? My Job Offer Was Pulled Before I Even Started?
Congratulations! You’ve been offered a new job! You give your old employer the “customary” 2 week notice, take some time off for yourself (maybe), possibly even relocate in anticipation of the new opportunity, and eagerly await the start of your new job. Then it happens…You receive notice that, before you even start, the job offer has been rescinded. How can this happen?
Your job “offer letter” is not likely to be considered a binding contract. It only sets out the broad parameters of the expected relationship between you and your new employer. It’s time to read the fine print in your offer letter, because it undoubtedly contains a number of conditions that have to be met before you start the new job. Here are a couple of reasons your job offer may vaporize before you even start.
• You Failed a Drug Test.
Most employment offers are contingent upon several pre-conditions being met. Foremost is that you may be required to pass an initial drug test to screen out the used of prohibited drugs. An employer has a general right to enforce a drug free workplace. However, there are certain exceptions. In 2022, Illinois Amended the Right to Privacy in the Workplace Act. An employer may not refuse to hire an individual or discipline an employee because results of an individual's drug test indicate the presence of THC on the part of that individual. Illinois also strictly prohibits taking adverse action against a job applicant (or employee) for the lawful use of cannabis because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. A positive test that reveals the presence of prescription medications taken pursuant to a doctor’s orders may also be acceptable, depending on the type of medication.
• Problems With Your Background Check.
It is normal practice for a prospective employer to conduct a pre-employment background check. Under the Fair Credit Reporting Act, an employer must provide an applicant with advance notice that they will be conducting a background check and the applicant must provide written consent. The employer must also provide the applicant with a copy of the report and certain notices before taking any adverse action.
Illinois has strict prohibitions on using an arrest record as the basis for denying employment. Also, there are strict tests that have to be met in order to take any action based upon a criminal conviction and the employer must do an individualized assessment and weigh factors such as, the nature of the conviction, the time of the conviction, relationship of the offense to the job requirements among other items.
• False Statements On Your Resume or Application.
Most applicants gloss over the language at the bottom of the job application that reads: “Any false statements made concerning your background on either your application or any related materials may be grounds to deny employment (even if discovered after you begin employment.) This can cover prior work experience, prior education, skills, or even prior employers. Rest assured, most employers WILL conduct research into what you have provided them and any untruths or exaggeration will likely lead to a job offer being pulled back. The justification most often used by a prospective employer in these situations is that they do not find you trustworthy if you’ve lied about your past accomplishments and this is perfectly legal and defensible.
• Your Social Media Posts or Past References Are Problematic.
Most employers, when contacted for a reference are petrified of being sued for giving out a “bad” reference about a prior employee. However, In Illinois, there exists a “qualified immunity” for truthful statements given during a reference check. Still, employers today are only comfortable giving your name, position held, job title (and verification of your salary if you provide that information).
Social media postings can raise a whole hornet’s nest of issues. Here, we’re not talking about routine pictures or posts of you enjoying a night out with your friends or significant other. We’re talking about what may amount to hate speech. In general, an employer may be able to rescind a job offer for really egregious social media posts. However, this landscape is rapidly changing and what may be viewed as an “egregious” social media post may also be considered protected conduct under the National Labor Relations Act.
• Corporate Restructuring.
This is probably the only area completely out of an applicant’s control. New management may be coming in and reassessing the corporate structure, budgetary constraints due to the loss of a major client or piece of business, or any type of unexpected economic downturn may cause a reevaluation of staffing levels (including the position you were to fill). If these types of situations occur, an employer is generally protected in that its decision to pull back the offer because the reason for the decision can be traced to a legitimate, non-discriminatory reason. This is the classic “it’s not you, it’s me” scenario and there is very little recourse for an applicant.
Rescinding a job offer is never an easy decision. There are many ways to get tripped up, whether you are an applicant or the prospective employer. That is why it is always advisable to work with experienced legal counsel concentrating in employment law. With over 39 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.
