We know that we’re supposed to make a “genuine” offer of employment before we require medical tests and so on. But what do we do when we are waiting for one more reference to come back or the results of a background check? (We can do the background check before the offer, right?) Do we have to wait until every last item is complete before making an offer? I think we’ll lose good people if we wait too long—they’ll think we don’t want them. And the hiring managers are on my back. — Catherine, HR Manager in San Bernardino
Employee Orientation: How To Energize, Integrate, and Retain Your Newest Hires
Get new employees off on the right foot with a well-designed orientation program that will help you boost morale and reduce turnover. Download our free White Paper, Employee Orientation: How To Energize, Integrate, and Retain Your Newest Hires, today.
You are correct that you must make a genuine offer of employment before subjecting an applicant to a medical examination. You are also correct that you may check references or other background information before making an offer. Must you wait to make an offer before you obtain all the references or other background material about an applicant? No—there is no requirement to wait. However, you can create issues for yourself if information that you receive after making the offer causes you to want to revoke the offer. For example, if the person makes a change in reliance on your offer—such as by resigning his or her current employment or by physically moving his or her residence in anticipation of starting work—and you then withdraw the offer, you could be liable to the individual under various laws.
The safest bet, of course, is to wait until you have complete information before making an offer, but that can pose practical difficulties if the best applicants are lost to other employers while you collect the necessary background information. One way to accomplish both ends with some mitigation of risk would be to make the employment offer in writing and to state that the offer is contingent on the applicant’s successful completion of background and reference checks. This way, the applicant understands that the offer may be revoked if the references come back negative. You would then be in a stronger position to defend the type of claim mentioned above.
Some Pointers on Background Checks
While on the subject of background checks, it’s important to note that if you are going to obtain a consumer credit report and/or an investigative consumer report such as a criminal background check, motor vehicle report, or credit report, you must comply with state and federal laws governing those types of reports. That compliance includes providing written notice (before requesting the consumer report) to the applicant in a clear and conspicuous stand-alone disclosure that you are doing so. The notice must meet certain requirements under both federal and state law, and also should include a summary of the federal and state statutory provisions under which the applicant may inspect the file maintained by the reporting agency regarding him or her. In addition, you may not procure the report unless the applicant has authorized you to do so in writing on a form that includes a check-off box that permits the applicant to request a copy of the report. Finally, you must certify to the consumer reporting agency that the applicable disclosures to the applicant have been made.
If the applicant indicates that he or she would like a copy of the report, you must provide one at the same time you receive yours. If you are going to deny employment based on the results of a consumer credit report or an investigative consumer report, additional rules apply.
If you conduct a background search yourself without using the services of a consumer reporting agency, you are not required to disclose your contact with an applicant’s prior employers to obtain reference information. Your disclosure obligation is limited to matters of public record, such as documents that relate to a conviction or civil judicial action. But if the applicant does not waive his or her right to receive a copy of your report (by checking a box provided on the job application form or any other written form), you must provide a copy of public records you obtained about the applicant within seven days of receipt.
Sandra Rappaport is a partner at the San Francisco office of law firm Hanson, Bridgett, Marcus, Vlahos & Rudy.