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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4993
Experience:  Extensive experience representing employees and management
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After applying for a job, and interviewing with two principals

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After applying for a job, and interviewing with two principals at an ambulatory surgery center, and passing the Board of Director's approval, I was made an offer of employment for a per diem RN position in their Recovery Room, contingent on passing a background check and physical exam. I was given an hourly rate of pay and accepted the offer over the phone. I have numerous email follow-ups expressing pleasure with my decision to accept the offer and being anxious for me to come onboard. I had to complete a couple of certification classes that were not mentioned as being a pre-employment requirement, as well as a TB skin test to be redone, but I have other emails that show none of that was a problem. There was certainly no withdrawal of the offer related to any of this. On the day I completed the recertification classes and called HR to find out when they'd like me to start, I was told my start date was "on hold." After requesting clarification I was told my offer was being "recinded" because they "sometimes over-hire," but apparently not because of anything in the backgound check or physical. This isn't legal, is it? I held off with other potential employers because I knew I had a job to start and couldn't accept something else immediately. I live in California.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  BartEsq replied 1 year ago.

BartEsq :

Hi, my name isXXXXX going to try and help.

BartEsq :

First, CA is an employment at will state. At-will employment is a term applied to any employee who doesn't have a clearly defined contractual employment agreement. It means, essentially, than an employer can dismiss an employee at any time without cause.

BartEsq :

So you ask whether it was legal or not....iin legal language, illegal means a criminal act. So, to be specifice, the employers action was not illegal per se. This does not mean there was not a tort (civil wrong).

BartEsq :

With the emails and communications you have, you may indeed have enough to make a claim for breach of contract. Otherwise, CA is an eployment at will state. And considering the nature of the job, ie, per diem, it sounds like no emplyment contract was intended.

BartEsq :

http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx


Here is a link to the CA bar association lawyer refereal service in case you need it.

BartEsq :

Any questions?

BartEsq :

You may also have a cause of action for detrimental reliance on the job offer....since you passed up others. Again, I doubt the hospital will give in unless you actually are represented by a lawyer, and even then, only a court can get them to make up for the wrong if the hospital does not want to cooperate.

Customer:

All due respect but I wasn't expecting an answer from an attorney who graduated from law school two years ago, much less in Florida. The attorney who popped up on my screen to answer my question was a female attorney specializing in labor and employment law, with twenty years of experience.


 

Customer:

 


 

Customer:

Not to say your advice is wrong, but I think this site is misrepresenting its services


 

Customer:

Thanks for your answer. I figured the actual law wouldn't matter and the employer would be able to get away with anything. Can I at least demand to have my background check sent to me. I understand that is the law.


 

BartEsq :

I have no idea what you see on your screen. I also have three degrees and a law license. I was also a medic in the military and an emt firefighter for ten years...real familiar with nursing jobs. You can request info from human resources but I dont know what info they will give since you were technically not an employee. The are not required by law to disclose a background check on you.


 

BartEsq :

I tell you what, Im going to opt out of this question and send it to the eployment and labor law category.

Customer:

The site says you're typing. Can you


answer my last question?

Customer:

Thanks. I appreciate that.


 

Customer:

I checked a box on the background check authorization form that I'd like a copy of that report. My understanding of California law is that I'm entitled, whether or not the background check is used to rescind my offer of employment, to a copy of the background check. I'd like to ask for it (and my physical exam as well, if possible) from HR, and do so in a way that will get the results I'd like to achieve.


 

Expert:  Joseph replied 1 year ago.
Hello. Your previous expert opted out since this was not correctly categorized. Please let me know what addiitonal information you need regarding your question.
Expert:  Joseph replied 1 year ago.
In answer to your last question, yes, you are entitled to a copy of your background check from your employer. You should be sent the background check either by mail or email. If you don't receive it, you should request it directly from HR and they should provide it to you.

Also, unfortunately, unless you were discriminated against on the basis of a protected characteristic, your employer can terminate a job offer at any time for any reason with or without any prior notice.

This is due to the employment at-will doctrine, which is codified in California Labor Code Section 2922, and states;

"An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."

I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate a direct and honest answer to your question.
Customer: replied 1 year ago.

Thank you for your answer. I had to leave this site before you were able to get back to me, so didn't read your answer until today. One more quick question, if you don't mind?


 


As far as the background check and physical are concerned, after my offer was withdrawn I did some more searching of California law and I thought I found an area somewhere that indicated I could have a copy of the background check even if I didn't check the box on the authorization form, in fact, I thought if a true offer of employment was withdrawn, it was incumbent on the employer to produce the information in the background check or the physical that caused the offer to be withdrawn. Now, I realize you're saying that that my understanding of the law really doesn't matter and the employer can do whatever they want (what a surprise!) but can I at least request, and receive those two reports in this case? And if not, please explain the point of the law. Then I'll feel I got my fifty bucks worth.


 


Thanks very much,


 


Celeste Lange

Expert:  Joseph replied 1 year ago.
Yes, you do have a right to the information on the background check whether or not that information was used to deny you the position.

Your potential employer is required to provide you with a copy of the background check that you requested per California law.

You also would have a right to see the results of the physical that was conducted, which you could request directly from the doctor who performed the physical.
Customer: replied 1 year ago.

So is my understanding of the offer and acceptance of employment contingent only on passing a background check and physical exam correct? Or is it simply that any "at-will" employer can simply "over-hire" as this one did, and then a month later claim they don't need you and get away with it? Is there some point to this law or I do I misunderstand it?

Expert:  Joseph replied 1 year ago.
Unfortunately, an at-will employer can over-hire, as your employer did, and can decide to terminate your employment prior to it beginning since you did not have an employment contract in place.

As I mentioned above, the employment at-will doctrine covers this, which allows employers to terminate an employee at any time for any reason with or without any prior notice.
Joseph, Lawyer
Satisfied Customers: 4993
Experience: Extensive experience representing employees and management
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