1215 - Rescinding a Job Offer/Refusing to Employ a Person Who Has Accepted an Offer of Employment

Category

Appointments

Audience List

• Administrative Chiefs
• Labor Relations Officers
• Personnel Officers
• Transactions Supervisors

Synopsis

This policy provides:

• Guidance for rescinding an offer of employment.
• Guidance for refusing to appoint after an offer of employment is accepted.
• Defines what constitutes a formal offer of employment.

Introduction

This policy section provides guidance to appointing powers on how to avoid, mitigate, and/or resolve situations where the appointing power elects to rescind a formal offer of employment.

Note:  This policy does not apply to offers of employment where the candidate has disclosed protected health information as a condition of employment (i.e., health questionnaire, medical or psychological screenings.)  In these instances, please consult your legal office as to the appropriate process for rescinding an offer of employment.

A formal offer of employment is an offer which has been appropriately authorized pursuant to an appointing authority’s pre-established internal procedures. This may include the fulfillment of specific employment conditions (e.g., criminal background checks, medical clearance).

Statement

After an appointing power makes a formal offer of employment, certain facts or events may be discovered prior to the candidate’s start date that makes the appointment unlawful. As a best practice, formal offers of employment communicating the intent to hire should be provided in writing and outline the basic terms and conditions of employment such as the classification, job title, start date, compensation, and any other pertinent information related to the employment offer in accordance with Government Code section 19057.2.

The state has traditionally interpreted and treated the start date of an appointment as the date the person officially reports to work and begins performing the duties of a position. This traditional interpretation and application of when state employment begins has been significantly altered by the appellate decision in Nancy Michaels v. State Personnel Board. The Michaels decision found that, under Government Code section 18525, the official appointment date for an employee is the date the employee accepts an offer of employment.  Therefore, it is conceivable to have an “appointment” before the employee actually begins performing the duties of the position. 

As such, when appointing powers are considering whether to rescind a formal offer of employment, they must be mindful that the appointment begins on the date the employee accepts the formal offer. As a result, if the individual has accepted a formal offer of employment before a job offer is rescinded, then the appointing power must now treat the appointment as a potential unlawful appointment and proceed with the unlawful appointment investigation process outlined in California Code of Regulations, title 2, section 243 et. seq.

However, upon the acceptance of a formal offer of employment, the assumption of pay and/or benefits shall not commence until the individual reports to work and begins performing the duties of the position.

Application

Before A Formal Job Offer Is Accepted

Appointing powers should develop and utilize internal hiring processes to ensure that selected candidates are eligible for appointment and that the appointments are properly authorized before a formal offer of employment is made.

When an appointing power discovers that an appointment may be unlawful prior to the applicant’s acceptance of the formal offer of employment, the job offer shall be immediately rescinded, and an investigation as to the lawfulness of the potential appointment shall be conducted. The rescinded formal offer of employment should be provided both verbally and in writing and inform the applicant of their right to appeal the rescission by filing a merit issue complaint with the appointing power pursuant to California Code of Regulations, title 2, section 66.1.

After providing the candidate notice of the rescinded formal offer of employment both verbally and in writing, the appointing power shall investigate the matter further to verify that the discovered facts support the rescission. If not, then the appointing power may re-offer the position to the selected candidate.

Please note that the candidate may file a merit issue complaint directly with the appointing power to contest the rescission, so an investigation which thoroughly gathers and weighs the evidence will be integral to providing a response to the candidate regarding the rescission or to the State Personnel Board if the candidate appeals the appointing power’s decision on, or denial of, the merit issue complaint.

After a Formal Job Offer Is Accepted

In those instances where the appointing power becomes aware of a potential unlawful appointment after a formal offer of employment has been accepted but prior to the start date, the appointing power may not simply refuse to appoint the employee on the designated start date as, according to the aforementioned Michaels court decision, the appointment date is the date the candidate accepts the formal offer of employment. The appointing power shall immediately conduct a full investigation into the potential lawfulness of the appointment. 

• If the investigation reveals the appointment is lawful, then there should be no concerns with allowing the candidate to start performing the duties of the position. 
• If the investigation reveals the appointment is unlawful, then the appointing authority shall notify the candidate of (1) the findings of the investigation and (2) the intent to void the appointment pursuant to California Code of Regulations, title 2, section 243 et. seq.

Please note: To allow for a full investigation into the lawfulness of the appointment, the start date may need to be postponed.

The intent to void, is the termination of the formal offer of employment which is considered the appointment.

To be compliant, appointing powers must provide the required notices and appeal rights, and maintain documentation in accordance with California Code of Regulations, title 2, section 26.

Circumstances Leading to Rescinding a Job Offer

The following are a few common examples of circumstances serving as a basis for rescinding a job offer:

1. The appointing power discovers that the selected individual was not honest when providing information related to their experience, education and/or level of competencies during the hiring process.
2. The appointing power discovers that the individual does not have the required civil service eligibility. For instance, after further review, the appointing power determines one of the following:

• The selected individual does not meet the minimum qualifications.
• The employee does not possess transfer eligibility into the appointing class.
• The selected individual is not reachable on an employment list.

Best Practices to Avoid or Prevent Rescinding an Offer of Employment

1. Identification of the approvals that are required before a formal offer of employment is made (e.g., Human Resources and Budget Offices).
2. If law mandates that an individual fulfill specific employment conditions (e.g., criminal background checks, medical clearance) before being appointed to a classification, there may be additional notification obligations not mentioned in this policy. Appointing authorities may see Human Resources Policy 1211 for additional guidance and should consult with legal experts if there are any uncertainties.
3. Staff involved in the recruitment and hiring process should be trained on and be knowledgeable of the laws, regulations, and policies concerning pre-employment inquiries.
4. The hiring procedures should be communicated directly to those individuals responsible for hiring and/or making offers of employment.

Best Practices to Avoid Financial Liability

Based on contract law, courts may conclude that an appointing power must compensate the person for any financial loss incurred as a result of the person’s reliance on an offer of employment.

As such, a decision to rescind an offer of employment must be communicated to the individual at the earliest possible time both verbally and in writing so that any potential losses or problems can be mitigated.

Authorities

• Government Code section 19057.1
• California Civil Code section 1605
• California Code of Regulations, title 2, section 11016
• California Code of Regulations, title 2, section 243
• California Code of Regulations, title 2, section 243.2
• California Code of Regulations, title 2, section 250
• California Code of Regulations, title 2, section 26
• California Code of Regulations, title 2, section 428
• California Code of Regulations, title 2, section 429
• California Code of Regulations, title 2, section 66.1
• Government Code section 18525
• Government Code section 18900
• Government Code section 19057.2

Resources

Authorized By

Michelle La Grandeur
Chief, Policy Division
State Personnel Board

Melissa Russell
Chief
Personnel Management Division

Contact Person

Personnel Management Division Personnel Management Division
Personnel Management Consultant , Personnel Management Division
Phone: 916-909-3709
Fax: 916-327-1886
Email: pmd@calhr.ca.gov

Superseded Policies

History

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