Interviewing an Internal Candidate: What a $15K Blunder Looks Like

As an HR pro, you know the importance of remaining professional while interviewing an internal candidate. That includes both avoiding certain topics and asking the right questions.

But at some point in your career, you might’ve sat in on an interview where a hiring manager felt a little too at ease with a familiar person sitting on the other side of the table.

And that can lead to trouble, as an Ohio company learned the hard way when an interviewer allegedly made comments that led to a lawsuit.

What went wrong when interviewing an internal candidate

In 2022, Nicholas Whitman worked at Akro-Plastics and received an excellent rating on his first performance review. He was also a member of the National Guard.

That September, he sought a promotion to an HR role.

Before his first interview for the HR position, Whitman disclosed that he had an upcoming three-month deployment with the U.S. Air Force beginning in 2023.

During the second interview, according to Whitman’s complaint, an interviewer told him that his upcoming military deployment was “a negative” and that his absence during that time would be “a hindrance” to being selected for the job.

In response, Whitman explained that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects military service members. The interviewer then stated that he didn’t believe USERRA was a “real law,” Whitman asserted.

The company went on to conduct a third round of interviews.

During Whitman’s third interview, the interviewer allegedly said he would’ve “selected Whitman for the Administrative HR position but for Whitman’s military commitment.” He then informed Whitman that the company had decided to go with another candidate.

Complaint to DOL

Whitman filed a complaint with the DOL’s Veterans’ Employment and Training Service (VETS), alleging the company discriminated against him by refusing to promote him due to his military service. Then Whitman went on deployment.

Meanwhile, the DOL investigated and determined that Whitman had a valid complaint. It turned the matter over to the DOJ.

Return from deployment: Things go from bad to worse

In April 2023, Whitman completed his three-month deployment and returned to work at Akro-Plastics. He said he “noticed an abrupt change in attitudes towards him by Akro’s officials and managers.”

Specifically, he said that after he returned from his deployment, “they all generally avoided speaking to him.”

On April 27, 2023, Whitman said a company official asked to speak to him about his VETS case. The company official allegedly told Whitman that he “was not qualified” for the HR role and that he would “let the legal system decide the VETS case.”

The official further stated that  “Akro would ensure that Whitman would not get the promotion to the Administrative HR position,” the lawsuit asserted.

A few weeks later, Whitman put in for half-days and time off for his upcoming schedule. His request was originally approved, but an Akro official “overruled the previously approved schedule and denied Whitman’s request.”

Resignation and USERRA lawsuit

Due to the alleged conduct of the company officials, Whitman resigned and filed a USERRA lawsuit. The DOJ provided representation and ultimately helped secure a settlement to resolve the case.

The suit alleged the company violated USERRA by refusing to promote Whitman based on his military service and by making his working conditions so intolerable that he felt compelled to resign.

In the DOJ’s view, the alleged conduct violated USERRA, which protects military service members and veterans from employment discrimination on the basis of their service and allows them to return to their civilian jobs following a period of uniformed service.

Moreover, the DOJ asserted that the violations were “willful.” It asked the court to order the company to pay Whitman for lost wages and provide other relief.

“Federal law safeguards the civilian employment rights of our nation’s service members and ensures that their career opportunities aren’t harmed because of their military duties,” said Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division. “Employers must ensure that service members receive all career advancements that they deserve.”

To learn more about USERRA compliance, the DOL’s VETS Center offers guidance, posters, fact sheets, e-tools and more.

Company pays $15K to settle

The company agreed to pay $15,000 to Whitman for lost wages to settle the case. As part of the settlement agreement, it also agreed to:

• Review and revise its policies, procedures and training materials on USERRA compliance.
• Submit the revisions to the DOJ for approval.
• Post a notice in a prominent position in the workplace regarding the company’s intent to comply with USERRA and notifying employees about their rights under USERRA.