Can They Do That?

Sometimes being an applicant is like being a second class citizen.  Companies do things to applicants that they don’t do to employees and I often get the question – can they do that?  I’m not a lawyer and I will not give legal advice.  But I can share with you some common practices and maybe tell you where you can learn more if you need to.

Drug screens, and physical examinations – Yes, employers have every right to ask you to take a pre-employment drug screen (of any format they feel is appropriate) and to pass a physical examination.  But, they can’t do either of these until after they have extended to you a conditional offer of employment (conditional on passing these medical tests).  The tests need to have some relationship to the work you’ll do or their policies – e.g. a drug-free workplace policy or a lifting capacity test for a warehouse worker.  (RE: the American’s with Disabilities Act and the Genetic Information Non-Discrimination Act)

Criminal Background and Credit Checks – yes, they can conduct these checks. Again, they should be conducted post-offer (but they don’t have to be) and you must sign an acknowledgment/consent before they investigate.  If they decide not to hire you based on what they learn they have to tell you about that and give you a copy of the report. (RE: the Fair Credit Reporting Act)

References and Social Media checks – yes, they can ask anyone they want to tell them about you and those people can tell them anything they want to tell them – as long what they tell them is the truth.  Where reference checks go awry is when the former supervisor is honest, and says that Bob was not a good worker, but nobody told Bob that, and in fact his personnel file is full of positive reviews.  Or, if Bob really was a sociopath and was fired for threatening to shoot his boss (while holding a gun) and the former supervisor says Bob’s a great guy – you should hire him.  Dishonesty will cause problems.  As your mother probably told you – if you can’t say something nice, don’t say anything at all.

And yes, companies can go look at your Facebook profile and see pictures of you holding red cups and acting inappropriately and then decide not to hire you.  So, if you’re serious about your job search a) limit your web presence to your friends and b) don’t post things that might reflect on you poorly – have some common sense.

Withdraw the offer – probably yes.  Let’s say the company makes you an offer, then they conduct the background check and based on that they change their mind.  If a) they told you they were going to check your references, etc. and b) they told you the offer was contingent on the results of those checks, then absolutely, they can pull the plug.  If, however, they give you a written offer with no contingencies, and if you have not lied to them about anything (including enhancing your resume or lying on your application), then regardless of what they learn, it may be a little harder for them to walk away.  But let’s be serious, do you want to work someplace where they don’t want you?  That’s not a great way to start a relationship.

It gets ugly when they extend an offer, you accept, you quit your current job (maybe burn a bridge or two in the process) and then they change their mind.  That can happen. Hopefully everyone can be as open as possible and make sure you’re all on the same page before you put a match to those bridges.

Verbal Contracts – speaking of ugly, verbal contracts are the worst.  Imagine this, you’re interviewing and the manager says “Okay, even though you’re a CPA, we are going to offer you the position of accounting clerk, because that’s what I have open and its all HR will let me do. But after about a month I’ll promote you to Controller and we’ll quadruple your salary.”  You get the clerk offer, accept it, and six months later you’re still a clerk.  Can you sue them?  Maybe.  It depends on who the manager was (did he have any authority to say what he said) and the language he used.  Was that promotion based on the assumption that you perform well or did something else have to  happen first?  Bottom line, don’t take this deal.  If you’re looking to be the Controller then get it in writing, or be willing to be a clerk.

As an applicant you have some rights. You should know what they are, but you should also know what’s best for you.  You really don’t want to work with some jerks who don’t know how to treat an applicant.



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