Hiring and the Law — Should You Respond to Inquiries From Rejected Applicants?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: : An applicant I recently rejected emailed me and asked if I could tell her why I didn’t hire her or what she did wrong in the interview so she could do better in the future. Do I have to answer her? If so, what can I say?

Answer: From a legal perspective, no. You have no legal obligation to respond to her email at all. In fact, should you choose to answer, there could be legal liability created for your company depending on your response. This is one of those situations where there is no straight forward answer.

You should be aware, however, that recruiters are recommending that disappointed candidates send “rejection follow-up” letters and emails to the hiring manager that rejected them. They are also telling the candidates that they should pester (my word) the hiring manager for the reason “why.” Thus, it is likely that you will see more of this type of follow up inquiry from rejected applicants.

Even though you have no obligation to explain your reason for the rejection, it is important that you do have a clearly articulated reason “why”—even if you never share it with the candidate. This is needed to defend against a failure-to-hire discrimination claim from a candidate who feels that he or she was rejected based on their age, race, national origin, religion etc. Thus, keep in mind that the inquiry may be a fishing-expedition from a disgruntled candidate and not just an effort to learn from their mistakes.

Nevertheless, there may be certain situations where you might want to respond. How you respond to a rejection follow-up inquiry depends on why the candidate was rejected. For example, would you have hired the person if you did not have a better candidate? Or, is there no way that the applicant would ever get a job with your company?

If the inquiry is from someone that you really liked and would have hired but they were the runner-up, you might want to maintain communication with the person in case another position for which they are suited opens up in the future. In that case, it is likely safe to say something like “You were a (very) strong applicant and we enjoyed meeting with you, but we had another candidate whose background (or whose experience or whose skill-set) was a better match for our needs at this time. If another position opens up that is a good match for your skills, we may reconsider your application at that time. Please let me know where you land.” That lets the applicant know that they interviewed just fine and maintains communication with a possible future recruit. It also is a good networking move, especially if they are in your industry so that their take-away from their interaction with your company is positive.

In such communications, however, never say you will consider them, or that you will reach out to them, but say, instead, that you may consider doing so. You don’t want to make any promises. What if something opens up in two years and you have completely forgotten about this applicant, but you said we “will reach out to you”? While it is unlikely that the applicant would know about the position two years down the road, and hopefully they are gainfully employed by then, to best protect your company you do not ever want to tell an applicant that you will do something unless you are 100% certain that you will.

If the applicant was someone you would never hire, you need to be careful in terms of what you say. That person may simply have been a bad fit for your company—but telling the applicant that may communicate that they weren’t the right age, or race, or gender etc., which of course would be discriminatory. If you have something specific you can say (for example, there were typos in the revised résumé they gave you at the interview; they knew absolutely nothing about your company and you expect your applicants to do some homework; they came to the interview in jeans; etc.), and you want to help the applicant do better next time, you could mention something along those lines. This would be pointing out very objective criteria that the person could not argue with you about.

When it comes to a more subjective determination, it may be best to just say that you are sorry, but it is not your practice to provide that information. Or—you don’t respond to the email/letter at all.

Or, you call your friendly employment lawyer, talk through the situation, and determine what to do that best protects you and your company with regard to that specific rejected applicant.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

As the law varies in each area, please check with an attorney to ensure you are applying these tips within the law.

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