Stuck Between Jobs: How to Handle Conflicting Background Check Feedback?

I have received a confirmed offer letter from my future employer, and based on that, I have resigned from my current organization. However, I have now received a call from my future employer's HR (no formal communication) stating that they have received negative feedback from my previous organization regarding my candidature in the Background Verification process.

I confirmed with my previous organization's HR, and they informed me that they did not receive any such communication or call from my future employer regarding my candidature. As a result, my future employer is reluctant to proceed with my candidature, while my previous employer maintains that they have not received any communication from my future employer.

I find myself in a difficult situation. Please advise on what steps I should take next.

Dear Mohit,

The company that offered you the job should have been thoughtful before issuing you the Offer Letter. Why did they conduct "Background Verification" after issuing the offer letter? Is it mentioned in the Offer Letter that your absorption is subject to positive background verification?

An offer letter is the starting point of the employer-employee relationship. The issuance of the Appointment letter after bringing you on the company's rolls would have solidified this relationship. However, the company has withdrawn midway, and this relationship was never fully established. Therefore, the company's actions have caused losses for you.

You may consider seeking advice from lawyers who handle cases under the Indian Contract Act (ICA), 1872. I am neither a lawyer nor an LLB, but as I conduct training on Contract Management, I have studied the ICA, 1872.

Let me bring to your attention the case of Vikas Electrical Service, Hubli V Karnataka Electricity Board (KEB), AIR 2008 Kar 88. In this case, KEB (defendant) issued three work orders and later unilaterally withdrew them without providing any reasons. Vikas Electrical (plaintiff) challenged the withdrawal and claimed damages. Although Vikas Electrical could not prove any loss due to the withdrawal of the three work orders, the court ruled in the plaintiff's favor because it deemed it important to consider "presumed damage."

In your situation, you have resigned from your current job based on the "Offer Letter." Hence, what you have suffered or are suffering is not "presumed damage" but "actual damage." The court has clearly defined "Sufferance of damage or loss" in the following case: Kamil & Bros v Central Daily Farm and Anr, AIR 2008 All.33.

Consult with your lawyer on how applicable this case/verdict is to your situation. Consider sending a lawyer's notice to your prospective employer. They should either absorb you or compensate you with a monthly salary equivalent to what your current employer was paying until you secure a new job.

All the best!

Regards,
Dinesh V Divekar
Management & Behavioral Training Consultant
Bangalore - 560094

"Limit of your words is the limit of your world"

I would disagree with Dinesh. The company is free to withdraw the offer letter if they receive any negative feedback from the previous employer or any other background verification they conduct. It is an established practice not to perform the BGV before the employee has accepted the offer letter. Firstly, because it is not determined whether they will make an offer (and thus why spend money). Secondly, because it would alert the employer to the employee's intention to leave, which could create further problems for the employee.

In most cases, the BGV would have been completed when the employee joins, and then the termination would occur immediately without compensation (usually during probation, there is no notice period anyway). Therefore, your position would not be significantly different.

If you were to pursue this matter in court, all the employer would need to show is that they have sufficient cause. The report from the BGV company would suffice. Alternatively, the HR department's contention that they contacted the previous employers and received certain feedback would also be considered.

In the best-case scenario, if the company were to hire you following a court order, they would still be within their rights to terminate you with notice pay or immediate pay. So, where does this leave you?

You can meet with the HR department of the new company in person and discuss the actual problem with them. Perhaps you can convince them that you are a valuable hire. Additionally, consider speaking with your current employer to explore the possibility of rehiring you.

I agree with Mr. Banerjee. First of all, as seniors, let us not issue a long advice letter and confuse the person. He cannot go to court and fight the case. Please do not mislead the person like this. Let us not act as if we know everything and misguide the person.

Please contact the HR of the future company and ascertain whether they referred you for background verification. If they provide a negative report about you, there is absolutely no chance of employment. If they confirm they have not referred you, then you can request them to consider your appointment by stating that you have given notice to your current company to release you based on the offer letter issued by the future company.

Dear Saswata,

Nothing is wrong if you disagree with me. However, sometimes candidates have to take up the cudgels against employers of this kind. Such employers have every right to fire anyone. Numerous posts on this very forum will testify to what I say. Now, a new trend will be set where they will start firing even before hiring.

Nevertheless, it goes without saying that litigation should be a last resort, and one should explore all options before litigation. Judicial settlement cannot be used at the drop of a hat.

For Launchpad: I have not misguided Mohit in any way. All that I have said is to approach a lawyer and find out whether a notice can be issued under the provisions of the Indian Contract Act, 1872. A lawyer is there to guide him. Secondly, to make Mohit's job easier, I have referred to two cases. Now, whether to use these cases or not, or their applicability itself, is at the lawyer's discretion. It appears that you have not read the complete judgments of both cases or at least of Kamil & Bros v Central Daily Farm and Anr, AIR 2008 All.33. The court has defined "damages" very well in this case.

Let me remind you that employers made a large number of bonds that favored only them. These bonds relate to taking up employment after the exit from the current job, etc. However, some persons showed courage and went to court, and courts have ruled against the employers. Imagine what would have happened if the aggrieved employees had not knocked on the doors of the court. Court rulings would not have come up. Rights do not fall into one's lap. You have to fight for them.

Lastly, the most surprising statement in your post is "He cannot go to court and fight the case." Probably the statement is derived from the self-made axiom that employers should always enjoy the upper hand, and employees should be subservient to their antics. Employers like Vijay Mallya take benefit of the abject submissive attitude of their employees and muster the courage of not paying salaries and yet continue with their swashbuckling. Can you think of such things happening in countries like the USA?

Thanks,

Dinesh V Divekar

I have not read the two cases you have given—I am not in a place with access to high-speed internet. Do these cases refer to the withdrawal of the offer letter in case of a negative BGV? If not, is there any case regarding compensation for the withdrawal of the offer letter?

The position has been discussed on the forum many times about the admissibility of bonds pertaining to the restraint of employment or Non-Compete after resignation. (That only applies in the case of the sale of the business by the concerned person). This does not apply here where the offer letter has been withdrawn because of a negative response to a BGV.

We can't, of course, be definitive here as we do not have all the facts of the case, most importantly, what exactly the prospective employer found. It is entirely possible the current employer gave negative feedback but refused to acknowledge the same to the employee. However, I would like to discuss more on the legal aspect and tenability of such a legal action against the prospective employer as it is an important enhancement to my knowledge. If you feel necessary, let's move that part of the discussion to a new thread and get all our senior members to give a response on it.

Coming back to the original post, it is also important to know the cost of litigation against the employer, who will pay for it until the case is decided, and how the employee will fund it. Will some lawyer fight it pro bono? Or with success fee-based working? Or will a union or NGO take it up for free? If not, how will the employee pay for it? How will such a case affect the employee's future employment? Will a future employer allow him to leave to attend court cases? Will he even keep someone who is fighting the previous employer in court?

In view of the possible answers to the above, I would say LaunchPad's statement seems correct. I will, however, leave it to the judgment of the person who posted the query to take a call based (now) on the differing views and your explanation of the same.