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> Always explain rationale around the No, to help them improve

This is my inclination: "We liked your attitude, you seem intelligent, and well-spoken, but we have concerns about your knowledge of <some key area>, maybe start contributing to <open source project> or experiment in <technology> and reapply in a year or two."

...my concern is opening up my company for legal liabilities. Am I just being paranoid?

This happened at my last company. It does in fact open you up to legal liabilities. The company had to settle 18 cases where applicants "disagreed" with the reason of their rejection.

I think it is a shame when trying to help people opens you up to liability. If that's not a sign that our society is too litigious, I don't know what is.

It's also why companies do not apologize, except as part of a settlement. An apology is an admission of guilt, opening the company to liability.

Man, this country is really messed up sometimes...

What's really messed up is that companies can lose a case in court, and then still not admit guilt or wrong doing.

At that point, hasn't the court basically overruled them? They lost the court case. End of story (?)

The law should not compel you to say something you believe to be false. If you lose a court case, it should be legal to say, "I still believe I did nothing wrong, but I will pay the penalty as the court has ordered."

Losing a civil case is not proof beyond reasonable doubt, but a 51% preponderance of evidence. A company can lose a case, and still not be guilty - why apologize for something you're not guilty of?

Why not apologize for something you know you are guilty of? That's the real problem, that rarely happens (especially in the case of a corporation).

At least in German the word "to apologize" ("sich entschuldigen"; although this translation, though often used, is considered to be impolite; if you are interested in the details read http://www.spiegel.de/kultur/zwiebelfisch/zwiebelfisch-entsc...) has "Schuld" ("guilt") in it. This implicitely states the belief that there exists a concept as guilt, which I don't, since I don't believe in free will.

Can you go into any specifics as to what was (allegedly) said to the candidates? 18 cases sounds like the company was either interviewing thousands of applicants or giving very strong reasons for legal challenges.

A person does not need 'very strong' reasons for legal challenges. They can be spurious, with the plaintiff hoping the company will find it cheaper to settle than defend themselves.

A system where the loser pays the winner the amount the loser paid their own lawyers will stop most of this nonsense.

How often does this happen in these kinds of cases? Lawyers don't work for free and payouts from a hiring suit are unlikely to be all that large (compared to medical malpractice and the like).

I've been at companies hit with employment law cases but always from current or former employees, never from potential applicants. It seems difficult to prove, unless the rejected candidate is given physical proof of wrong-doing.

Loser pays sounds like a good system, and I'll admit your suggestion for amount makes a lot of sense, but what if the lawyer is working entirely on contingency, as many of these cases are?

The interesting thing about contingency is a lawyer isn't going to take on a frivolous lawsuit on contingency. A lawyer will only take one on that he knows he can win, otherwise it's a giant waste of the lawyer's time and money, which he won't do.

So I don't think it would be a problem.

This is true if contingency lawyers only charge their regular rate. Do they really? I thought they work for a stake in the award they are going to win. Otherwise, why would anybody take a case on contingency? There is no 100% guarantee of winning a civil case so it's effectively reducing your own rate since you are going to lose* some cases eventually (* you might even win every case but some of them did not get awarded enough money to pay the lawyer's fees).

Contingency means they charge a percentage of the winnings. If they lose, they get $0. Hence, lawyers don't take on contingency cases unless it's a strong case.

And if they win they might get a giant pile of money. Hence, rational lawyers take on contingency cases based on the strength of the case relative to the potential payout. A weak case with high payout could be a better option than a sure-win case with low payout. This very website is created by people who practice this strategy in investment and they seem to be doing just fine.

Germany has "loser pays everything". However, a settlement means no one lost and everybody pays his own lawyers.

A "loser pays" system sounds great on the surface, but is fraught with unintended consequences:

- A complainant who loses on a technicality or procedural failure, and is now on the hook for hundreds of thousands in legal fees.

- A big company that bullies the complainant with legal shenanegans until the complainant is worn out, drops the case, and is now on the hook for hundreds of thousands in legal fees.

Just the fact that, after your own expensive legal fees, you'll be saddled with the big company's (much bigger) fees as well, would be enough to deter most people from suing, even if they're in the right. It would become a new tool for bullying the poor.

The loser's max liability will be what he paid his own lawyers, not what the other party paid theirs. Thus, you cannot spend your opponent into oblivion.

A better formula for what loser pays would be:

    min(what you paid your lawyers, what the other side paid their lawyers)

And what about pro se litigants?


For individuals, representing oneself pro se is extremely common.

Corporations must have an attorney, of course.

Their legal liability would then be $0. It wouldn't be worse than it is now.

I was looking for something like this. Regardless of how true the legal exposure is, every company I worked for claim this exact issue for not giving any reason. Been on the rwcicing end too, and felt that the whole exercise was a big waste of time considering the lack of feedback.

That is incredibly depressing to hear. I'm glad I operate out of another country if this is the case.

Based on what you wrote, you're probably being paranoid. I deliver lots of 'No' answers as well, and I don't see any issues with what you wrote. Legal liability tends to be around the generic responses where candidates may assume the worst (race, gender/orientation, age, etc.). A specific response that points to a lack of experience in a certain area seems a safer bet than 'not a fit' in most cases.

"Not a fit" is another way of saying "We don't like you" in a strange way.

I stay far away from those sweeping personality statements personally.

"Not a fit" can get dangerously close to "You're not the same gender/race/orientation/age-range as our core team" (especially if that happens to be true).

Yes that is a super tricky one and especially since cultural fit is probably one of the most important things to consider in the hiring process!!

Can you elaborate on what you consider cultural fit and why it is so important?

"cultural fit" is a rather awful description of a hundred small factors, some legitimate and some not.

Sometimes it refers to statements like "commit early, commit often" or "move fast and break things"; that's fine. Sometimes it refers to office interaction, such as whether you tolerate interruptions and social interaction: an introvert in an office full of extroverts or an extrovert in an office full of introverts; that's fine too, though at some point you'll scale large enough that you can't necessarily keep being that selective.

On the other hand, sometimes it means "are you going to play foosball with us and drink with us", which is wrong. And sometimes it means "do you have exactly the same personality/likes/dislikes/ethnicity/gender/etc as us", which is wrong and illegal.

In general, "cultural fit" is a dangerously vague excuse without a concrete reason. Say what you really mean, and if you can't bring yourself to say it, perhaps you shouldn't be using it as a hiring criteria.

Or... you're not a potential drinking buddy. ;)


Believe it or not, I was actually asked if I liked to drink. And I don't really drink.

So, were you offered the job?

Which is why I try to avoid all types of personal questions as much as possible. I do not want to take if you like squash or knitting or beer into account when I evaluate you as a potential hire. So if i don't know, it can't subconsciously affect my opinion of you. I am interested in your job performance.

I specifically meant the prohibited criteria, though I suppose as not drinking could be due to health or religion, it's also in a grey area... Could you sue someone for not hiring you because you don't fit in at the frat house?

Agreed, and I do as well. When a client asks me to relay a rejection due to "not a fit", I always ask for anything we can offer that would be useful to the candidate.

I've never had any issues in years and years.

I guess as long as you're being positive about it, and try to reinforce the shortcomings versus the positives it ends up being a good conversation. Always do it over the phone, email doesn't cut it.

It is a concern. When we hire, all the "no"s are filtered through our in-house recruiters who have been through trainings on what they can and can't say to rejected applicants. The situation is very similar to giving former employees a reference when applying for a new job. You have to toe the line and be very sure that everything you say is verifiably factually correct or you can be held liable.

It could, and you'll want to talk to labor lawyer for specifics about what is and isn't acceptable.

For example, when you talk about the candidate "seeming intelligent" that could suggest that appearances may have played a role in the evaluation, especially if you can't narrow down more specific reasons.

It's best to stick to objective factors such as the candidate's lack of experience in <some key area>.

If you're that worried why not cut it short to "We liked your attitude, you seem intelligent, and well-spoken, but we have concerns about your knowledge of <some key area>." There can't be any risk there, surely?

Even if it's not an official response, there are ways to be able to get backchannel information.. only if you're able to leverage relationships you've already built for people working at the company you interviewed with.

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