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 No matter the reason, employers should consult both state and federal law so that the offer is properly withdrawn to reduce exposure to claims made by the selected candidate.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
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.
Updated to reflect forthcoming law prohibiting employers from using juvenile convictions as a factor in determining a condition of employment.
Updated to reflect employer limitations on obtaining salary history of job candidates in the forthcoming state Act to Establish Pay Equity, which strengthens existing equal pay laws.
Updated to reflect hiring requirements under the Workplace Privacy Act, effective July 20, 2016.
Updated to reflect amendment to Philadelphia's Fair Practices Ordinance prohibiting use of credit information in hiring, effective July 7, 2016.
Updated to include employment offer requirements under Portland's ban the box law, effective July 1, 2016.
Enhanced to improve the comprehensiveness, organization and scope of coverage.
Updated to reflect hiring requirements under the forthcoming social media privacy law.
Updated to reflect Austin's ban the box ordinance and its conditional employment offer requirements, effective April 4, 2016.
The New York City Commission on Human Rights collected nearly $1.4 million in awards and penalties in discrimination cases in 2015, according to enforcement data released by the agency. In addition, the Commission held a public hearing on its proposed rules to the City's "ban the box" law this week.