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Be sure to document why you didn’t hire

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in Hiring,Human Resources

If you’re like most employers, you carefully consider applicants for open positions and document exactly why you chose the candidate you considered the best one to fill the job.

But what about the rest—the applicants you didn’t select?

If you only have records on successful candidates, you may be at a huge disadvantage when—it’s almost inevitably—an applicant who wasn’t hired decides to sue you.

Your best bet is to make absolutely sure you can explain why any applicant who met your stated minimum qualifications wasn’t chosen for an interview or, if he was interviewed, why he didn’t get the job.

Recent case: Kelly applied for a job with the BNSF Railway Co. In his application materials and at an in-person interview, Kelly stated he had spent a decade working for another railroad, Norfolk Southern.

When the interviewer asked Kelly why he had left that job, he revealed that he had been fired.

But he also told the interviewer that he had sued Norfolk Southern under the Uniformed Services Employment and Reemployment Rights Act (USERRA.) Kelly said he won the case, with the court ordering him reinstated along with a payment of over $350,000. Ultimately, Kelly didn’t return to work with Norfolk Southern, but negotiated a settlement of more than a half million dollars.

This convoluted tale made the interviewer question Kelly’s claim of a decade’s worth of experience. It seemed like Kelly was counting as practical experience at least some of the time he spent pursuing his lawsuit against Norfolk Southern.

The BNSF interviewer decided Kelly had been dishonest and declined to hire him.

Kelly sued, alleging he had been rejected in retaliation for his earlier USERRA lawsuit.

However, BNSF had good interview records, including notes backing up the conclusion Kelly wasn’t offered the job because he came across as dishonest, not because he had sued another employer. The court tossed out Kelly’s lawsuit. (Hance v. BNSF, No. 15-5858, 6th Cir., 2016)

Final note: Make sure these kinds of records are filed with HR. Lawsuits can arise years after the fact, and there’s no guarantee that the person who interviewed the plaintiff will be available to testify.

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