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Applicant suing for failure-to-hire? Make sure she really did apply for the job

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in Discrimination and Harassment,Firing,HR Management

Score one for common sense: People who want a job they see posted have to apply before they can sue for not getting it.

A phone call to HR that was never returned can’t be grounds for a failure-to-hire lawsuit.

Recent case: Liberty Mutual paralegal Carol Pallonetti lost her job in a reduction in force. She agreed to accept a severance payment in exchange for promising not to sue over the RIF or any other employment claims she might have had.

Six months later, she saw a posting on the Liberty Mutual web site for a job opening she thought she was qualified to perform. Pallonetti claimed she called HR to ask if she was permitted to reapply for a position, but that she never got a call back.

Then she sued, alleging age discrimination.

But the court threw out her lawsuit. It reasoned that she never actually applied for the opening. Therefore, she had no case. The fact that an initial query about the job wasn’t answered wasn’t good enough to justify a lawsuit. (Pallonetti v. Liberty Mutual, No. 10-Civ-4487, SD NY, 2011)

Final note: Here’s how to get additional protection against failure-to-hire lawsuits. Make sure all job postings clearly set out the job requirements, including education and experience needed. Then provide specific, step-by-step instructions on how to apply. Accept all applications. Then perform a blind preliminary review to check for experience and education.

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