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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33517
Experience:  Retired (mostly)
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I was offered a job as the Human Resources Director on February

Resolved Question:

I was offered a job as the Human Resources Director on February 21, 2013 with a start date of March 11, 2013. On March 1, 2013 I received a phone call from the President and CEO - the hiring manager - and was told the job offer is being withdrawn. When I asked why, I did not receive an answer. I suspect age discrimination and/or a summary report of an "Integrity Assessment" that was not shared with me. There are more details, but I believe I have captured the essence of the case.

Thank you,
Rod Martindale
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

There are two issues here:

1. Unlawful discrimination. Assuming that there is an age discrimination component, then you have a lawsuit for damages, which would include "front wages" in the amount of your reasonably likely salary for the human resources director position, until you find suitable alternative employment. The trick is proving discrimination. Usually, you must wait and see who is actually hired for the job. If they are substantially younger (20 years or more), then you may have a claim. But, it's still a difficult claim to prove. You can file a complaint with the Department of Fair employment and Housing (DFEH), and see where it goes.

2. Labor Code 970-702 violation. Section 970 provides: "No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the compensation therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought."

As can be seen in the code section, if you can show that the employer manipulated into leaving prior employment to take this new job, then that would be grounds for similar "front wage" damages -- times two, because Section 972 provides for double damages if the claim is proved. This claim must be made via a private lawsuit. You would have to hire a lawyer to sue on your behalf. For a competent referral to an employment rights attorney, see this link.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.

Thanks. Two other facts/questions: I took an "Integrity Assessment" on line. I entered my social security number. One hour after completing the assessment, I was told my job offer was being withdrawn. I asked if the assessment was the reason why; I did not get an answer. Here are my questions: Since I gave my SS # XXXXX line, can that constitute an on-line signature; thereby, allowing me to get a copy of something I signed? Secondly, doesn't this assessment have to show reliability and validity as it relates to the position being offered?


 


Thanks,


Rod Martindale

Expert:  socrateaser replied 1 year ago.
An "integrity assessment" is a paper "polygraph" test -- the goal of which is to determine your likelihood of engaging in conduct that would damage the employer. See this link for an example. Typically, this type of test is used in retail sales positions, or banking, investment, etc., where persons work with product inventory, cash tills and/or other people's money. I don't know how useful it would be in a human resources position, since it would be pretty difficult for an HR manager to steal from the employer's 401(k) plans.

But, if there was a coincidence between the use of the exam and the offer withdrawal, then maybe the test picked up something that the employer didn't like.

Concerning your right to review the test, there is no right to do so, absent a legal action -- though the DFEH can review the test results,via an administrative subpoena, and it could have you take the test again and compare results to see if the results provided to DFEH were manipulated in some manner.

Concerning the reliabiltiy and validity, the legal requirement for any test is that it does not discriminate based upon race, color, creed, nationality, ancestry, religion, sex, sexual orientation, pregnancy, age or disability. Once again, were the test proved to contain unlawful discriminatory questions, then that could be evidence for a discrimination action. But, it would be your burden (or, DFEH's) to prove that the test is not a general and neutral test of secular ethical conduct. And, these tests are carefully written to avoid the possibility of violating the federal and state civil rights acts.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33517
Experience: Retired (mostly)
socrateaser and 2 other California Employment Law Specialists are ready to help you

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