Employment Offer: Oregon
Federal law and guidance on this subject should be reviewed together with this section.
Author: Joy Ellis and Kathryn Landes Ball, Garvey Schubert Barer
- In Oregon, verbal employment offers can bind the employer if the promise is sufficiently definite so as to be enforceable. See Verbal Employment Offers.
- Offer letters can result in a contract if they convey a specific terms, offer consideration (such as compensation and benefits), and require some sort of written acceptance, such as by signing at the end of the offer letter. See Written Employment Offers.
- Portland has requirements pertaining to employment offers. See Local Requirements.
Verbal Employment Offers
In Oregon, verbal employment offers can bind the employer if the promise is sufficiently definite so as to be enforceable. In one seminal Oregon case a 55 year old employee was offered a light duty position following his work-related injury. He asked his manager whether his light duty job was permanent and was told, "as long as we have production to run." The employee accepted the light-duty position, but was later terminated for performance reasons. He then sued, and received a jury verdict for his claim of breach of the employer's promise to employ him until retirement so long as there was production to run. See Seibel v. Liberty Homes, Inc., +85 Or. App. 261 (1987), affirmed in part, reversed in part on other grounds, +305 Or. 362 (1988). Therefore, when extending an employment offer, employers must be careful not to make any promises of job security to the candidate.
Written Employment Offers
While a formal employment agreement binds an employer to specific terms and conditions of employment, offer letters can also result in a contract if they convey specific terms, offer consideration (such as compensation and benefits), and require some sort of written acceptance (signing at the end of the letter, for example). See Gaswint v. Amigo Motor Homes, +265 Or. 248, 254 (1973). Therefore, if an at-will employment relationship is intended, an at-will disclaimer should be included in the offer letter.
Handbooks and written policies, too, have been construed by Oregon courts as binding contractual obligations when they contain enforceable promises. For example, policies regarding progressive discipline, severance upon termination, and benefit packages have all tripped up Oregon employers that did not reserve the right to deviate from the policies and exercise discretion in their implementation. Oregon courts will construe policies subject to the same principles of construction as any other contract. Fox v. Bear Creek Corp., +99 Or. App. 90, 92 (1989). However, Oregon courts have routinely held that a disclaimer in an employee handbook will maintain an employee's at-will status. Therefore, Oregon employers should be sure that their handbooks contain such a disclaimer, as well as discretion in the administration of progressive discipline and other policies.
Salary History Restrictions
Oregon's Equal Pay Act of 2017 prohibits employers from asking job applicants or employees about their salary history or to seek the information from a current or former employer. However, an employer is still able to ask a prospective employee for written authorization to confirm prior compensation after the employer makes a job offer that includes an amount of compensation. +ORS § 659A.357.
An employer is also prohibited from:
- Screening applicants based on current or past compensation; or
- Determining compensation based on the current or past compensation of a prospective employee.
However, an employer is able to consider the compensation of a current employee during a transfer, move or hire of the employee to a new position with the same employer.
Further, Oregon issued administrative rules implementing the equal pay and salary history law.
In particular, the rules clarify that to screen job applicants based on current or past compensation includes using information, however obtained, about a job applicant's current or past compensation to determine a job applicant's suitability or eligibility for employment. The unsolicited disclosure of a job applicant's current or past compensation by a job applicant, employee or a current or former employer of the applicant or employee that is not considered by an employer does not constitute a violation of the law.
For information regarding forthcoming developments under this law see Future Developments.
Conditional Job Offers
Following the Americans with Disabilities Act (ADA), Oregon employers may not require a medical examination until after a job offer has been made. However, an employer may condition a job offer on the results of a post-offer medical examination if the employer requires all entering employees in the same job category to take the examination. Employers must be aware that Oregon law requires all employers with six or more employees to comply with Oregon's disability law. +ORS 659A.106
If an offer is conditional upon a successful background check, employers in Oregon should be aware that most Oregon employers cannot legally obtain an applicant's credit history information. Further, Oregon law specifically prohibits an employer from refusing to hire an applicant based on his or her credit history. The applicable law makes exceptions for federally insured banks and credit unions, law enforcement agencies, and employers that are required by law to use individual credit histories for employment purposes. An exception also exists for employers that obtain or use credit history information because it is "substantially job-related," but this term is narrowly defined and the exception is only allowed if the reasons for use of the information are disclosed in writing to the applicant. See +ORS 659A.320
Further, if the employer requires that the new employee execute a restrictive covenant as a condition of employment the employer must provide a written notice to the employee at least two weeks before employment begins that a noncompetition agreement will be required. See Terms of Employment: Oregon.
Ban the Box
An employer may not require an applicant to disclose a past conviction on an employment application or prior to an initial interview. Further, if no interview is conducted, an employer may not require an applicant to disclose a criminal conviction before a conditional job offer has been made. +2015 Ore ALS 559.
There are exemptions for the following situations:
- Where federal, state or local law requires the consideration of an applicant's criminal history;
- The employer is a law enforcement agency or in the criminal justice system; and
- The employer is seeking a nonemployee volunteer.
Portland has requirements pertaining to employment offers. See Local Requirements.
An employer may not require an employee or applicant to: establish and maintain a personal social media account; to disclose or provide access to a personal social media account or to add an employer to social media contact list; or authorize an employer to advertise on the personal social media accounts of an employee or applicant. Also, an employer may not take or threaten to take adverse action against an employee or fail to hire an applicant because he or she refused to establish or maintain a personal social media account. +ORS § 659A.330. See Recruiting and Hiring > Interviewing and Selecting Job Candidates: Oregon; Employee Management > Employee Privacy: Oregon.
Withdrawing Employment Offers
Employers must be careful when withdrawing at-will employment offers because the Supreme Court of Oregon in Cocchiara v. Lithia Motors, Inc., +2013 Ore. LEXIS 150 (Or. 2013), has carved out an exception to the employment at-will doctrine. Employers may be exposed to a promissory estoppel claim if they make promises to employees or prospective employees regarding at-will employment and subsequently withdraw that employment offer or fail to fulfill the promise and the employee or prospective employee reasonably relied on that promise of future employment or employment offer to his or her detriment.
Further, as stated above employers cannot refuse to hire an applicant based on his or her credit history unless the employer falls within one of the exceptions. Oregon employers must also comply with federal law if an offer is withdrawn based on the results of any other prescreening measures. See Recruiting and Hiring > Employment Offer.
Portland Ban the Box
Under Portland's "ban the box" law, employers with six or more employees who perform a majority of their work in the city may not inquire about or access a job applicant's criminal history before making a conditional employment offer. This ordinance also includes a ban on any criminal background checks until the conditional job offer phase.
A conditional offer of employment is defined as any offer to employ another that is conditioned solely on:
- The results of an employer's inquiry into, or gathering of information about, the applicant's criminal history; and/or
- Some other contingency expressly communicated to the applicant at the time of the offer.
If an applicant discloses his or her criminal history at any time before a conditional employment offer, the employer must disregard that information and take reasonable steps to prevent further disclosure or dissemination of the applicant's criminal history. In addition, an employer cannot base its decision on whether to make conditional employment offer upon any criminal history disclosed by the applicant.
It is not unlawful for an employer to withdraw a conditional offer of employment based upon an applicant's criminal history if an employer determines in good faith that a specific offense or conduct is job related for the position and consistent with business necessity. In making the determination of whether an applicant's criminal history is job related and consistent with business necessity an employer must make an individualized assessment of the following:
- The nature and gravity of the offense;
- The time that has elapsed since the criminal offense took place; and
- The nature of the employment sought.
After making a conditional offer, an employer is prohibited from considering the following:
- An arrest not leading to conviction or juvenile adjudication, except where a crime committed by an adult is unresolved or related charges or juvenile adjudication are still pending against an applicant;
- Convictions and related arrest history that have been judicially voided or expunged; or
- Any criminal history that have been resolved through the completion of a diversion or deferral of judgment program for offenses not involving physical harm or attempted physical harm to a person.
If an employer withdraws a conditional employment offer it must notify the applicant in writing of its decision and identify the specific item of the criminal history on which the decision was based and the source of the criminal history.
The city administrative rules define writing as in-person delivery of a paper document, delivery of such a paper document through the postal service or an equivalent private courier service, electronic delivery via e-mail, and any other means by which the applicant is provided with a permanent record of the notification. It does not include telephonic voicemail or text messaging.
The City of Portland, Office of the City Attorney created a model form for an employer to use to notify an applicant of the rescission of a conditional employment offer.
Limited exemptions are provided for jobs with law enforcement agencies; direct access to children; the elderly or the disabled; or those presenting public safety concerns.
Under Oregon's Equal Pay Act of 2017, effective January 1, 2024, individuals can file a civil action against an employer that seeks a salary history.