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 No matter the reason, employers should consult both state and federal law so that the offer is properly withdrawn to reduce exposure to claims made by the selected candidate.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 also be aware of legislation on the state and local level prohibiting employers from seeking salary or wage history information from prospective employees when recruiting and hiring candidates. Employers may be able to seek this information after a job offer has been extended and accepted. Also, employers should be aware that several localities have passed predictable scheduling ordinances which require employers to offer additional hours of work to existing part-time employees before hiring new employees or subcontractors.
Author: Melissa A. Silver, JD, Legal Editor
Updated to reflect offer requirements under the New York City Fair Work Practices ordinances, effective November 26, 2017.
California Governor Jerry Brown has signed into law two measures that restrict employers from asking job applicants about their salary and criminal history. Both laws are effective January 1, 2018.
Updated to reflect salary history restrictions, effective October 6, 2017.
Updated to reflect amendment to Illinois Human Rights Act regarding religious accommodation, effective August 11, 2017.
Updated to include amendment regarding social media accounts of prospective and current employees, effective July 31, 2017.