Overview: After the recruiting and interview process is complete, employers take the next step and make an employment offer to the selected candidate. When making a verbal employment offer, the employer should relay basic information, such as start date, salary and any preconditions that must be met prior to the commencement of employment.
Once the verbal offer is made, the terms of the offer should be confirmed in writing. If the employee must satisfy certain preconditions of employment, such as a successful employee background check, medical exam or drug testing, employers must ensure compliance with both federal and state law if they engage in these prescreening measures. This may include obtaining written authorization from the candidate permitting the employer to conduct a background check. Also, employers should clearly communicate in writing that the offer is one that is at-will and disclaim any contractual relationship.
There are times when employers must withdraw a job offer. This could occur for a myriad of reasons. For instance, the employee failed a drug test, the background check returned undesirable results, or simply because in light of this economic climate the employer's business experienced layoffs in the interim period between the employment offer and the new hire's start date. No matter the reason, employers should consult both state and federal law so that the offer is properly withdrawn to reduce exposure to claims made by the selected candidate.
Trends: Employers should use caution when communicating a job offer to the selected candidate and not make any statements of job security if the individual is being hired as an at-will employee. Some states will find certain statements or actions made by the employer created a contractual relationship even if one was not intended. For instance, some states will find that offering a salary in durational terms (e.g., $50,000 for one year) alters the intended at-will relationship into a contractual one. Therefore, employers should protect themselves with an-will disclaimer.
Author: Melissa A. Silver, JD, Legal Editor
Updated to include hiring provisions in the forthcoming West Virginia Safer Workplace Act.
Updated to reflect forthcoming New York City law prohibiting inquiry into applicant's salary history.
Updated to reflect forthcoming criminal history regulations.
Updated to reflect legal developments regarding Philadelphia's wage equity ordinance.
Updated to reflect forthcoming amendment regarding social media accounts of prospective and current employees.
As mandated by the City of Los Angeles, Department of Public Works, Bureau of Contract Administration, a covered employer must provide a written individualized assessment to the applicant if the employer plans to take an adverse action.
As mandated by the City of Los Angeles, Department of Public Works, Bureau of Contract Administration, a covered employer must give an applicant written notice of its proposed withdrawal of a conditional employment offer.
An employer with six or more employees who perform the majority of their work in Portland must provide notice of the specific item of the applicant's history on which its decision is based to withdraw a conditional employment offer.