Close your eyes and imagine a scenario.  No, not the white sand beaches of the Caribbean.  You aren’t on vacation.  Instead, you’re stuck in the reality of HR, and your responsibility is to try and ramp up your company’s on-boarding efforts. bigstock-Person-Holding-Hire-Me-Sign-In-6560947-200x184

So, your company has an opening.  To fill the opening, you hire a seemingly good candidate.  Or at least you think you do.  The problem is that the employee didn’t show up to work the first day. He/she keeps calling in to postpone the start date, and in the meantime, you’re short an employee. What can you do? Can you rescind the offer of employment without incurring liability for your company?

In West Virginia, the answer starts on fairly solid ground, anyway.  While West Virginia has not addressed this situation square on, there’s no line of authority out there which suggests that an employer doesn’t have a right to rescind a job offer for at-will employment when the employment hasn’t commenced yet.

There are caveats to think about, however.  To start with, is the individual a member of a protected class?  If they are, you certainly should not rescind the offer based on that classification.  In fact, if you think that the person to whom the offer was made might be a member of a protected class, or there is some other circumstance which suggests he or she may blame a decision to rescind an offer of employment on some protected status – for example, is the employee not showing up for work because of a medical condition – it’s a good idea to consult your attorney before rescinding the offer to make sure your company is not setting itself up to be sued for discrimination.

Additionally, was your offer for at-will employment, or has the individual already signed a contract for employment?  The law regarding contract employees is different from the law regarding at-will employees.  If the individual signed a contract for employment, the offer may not be able to be rescinded.  In that case, an examination of the terms of the contract is probably appropriate in order to determine whether the individual has breached his or her employment contract with your company.  Consulting an attorney here may not be a bad idea, either.

Finally, is the individual giving up something or expending resources to come to work for your company?  If so, consider that before rescinding the offer.  Some states allow employees to successfully sue an employer if they have, for example, given up another job and paid to move in order to take the job, even if they have not yet begun working.  If an individual can make a strong showing that the employer made some promise or implication of job security (i.e., something other than at-will employment) and can also show that he or she reasonably relied on that promise, recovery in court based on “detrimental reliance” may be possible.

If you do decide to rescind an offer of employment, you’ll want to keep careful records of exactly why the offer is being rescinded.  You’ll also want to make sure those records show that the reason the offer is being rescinded is not discriminatory.

Rescinding an offer of employment because you can’t get the employee to actually commence working is, to be sure, a fairly uncommon scenario.  And even though how to handle it if it were to arise would seem straightforward, there are always things to carefully consider in this business.  Make it a point to be deliberate as you make these types of day-to-day employment decisions related to your workforce.

Kaite Robidoux focuses her practice in the area of labor and employment law.
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