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Employment Offer: Pennsylvania

Employment Offer requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Christin Choi, Fisher Phillips

Summary

  • Written offers of employment should not set forth any guarantees with respect to the length or term of employment or with respect to termination only for cause because such guarantees may convert an at-will employment relationship into a contractual one. See Written Employment Offers.
  • An employee may overcome the presumption of the at-will employment relationship by showing clear and precise evidence of an oral employment contract for a definite term. See Verbal Employment Offers.
  • Any conditions that must be satisfied prior to beginning employment, such as the successful completion of background and reference checks or medical examinations, should be explained in the written employment offer. See Conditional Employment Offers.
  • If an employer determines that it must withdraw or rescind an employment offer, it should do so, in writing, as quickly as practicable. An employer may face potential exposure if an employee has taken action in reliance on the employment offer. See Withdrawal of Employment Offers.
  • Philadelphia has requirements pertaining to employment offers. See Local Requirements.

Employment Offers

After completing the interview and selection process, employers will extend an offer of employment to the successful job applicant. Absent a statutory or contractual provision to the contrary, Pennsylvania presumes that all employment is at-will. Geary v. United States Steel Corp., +319 A.2d 174 (Pa. 1974). Unless intended otherwise, employers must observe certain practices to ensure that they do not inadvertently alter the presumed at-will nature of the employment relationship. As under federal law, decisions to extend an offer of employment or to reject an applicant for employment may not be based on the protected categories set forth in the Pennsylvania Human Relations Act. +43 P.S. § 955.

Written Employment Offers

Pennsylvania does not require offers of employment to be in writing. If, however, an employer does extend an employment offer in writing, it should avoid making any guarantees with respect to the length or term of employment or with respect to termination only for cause. Such guarantees may later be found to convert the at-will employment relationship into a contractual relationship.

As such, the offer letter should clearly state that the letter is not a contract of employment and should reiterate that the employment relationship will be at-will and may be terminated by the employer or the employee at any time for any reason. Employers must avoid making any promises of continued employment or termination only for cause. The offer letter should also confirm the terms of employment, including the position being offered; the annual salary or hourly rate; eligibility for benefits and paid time off; the anticipated working hours, if appropriate; and any post-offer conditions to employment, such as satisfactory completion of background and reference checks, successful medical examinations or the execution of an employment agreement.

Employers should include a deadline for the employee to accept the offer, identify an individual who can be contacted with any inquiries, and request that the employee sign the letter in acceptance of the employment offer.

Verbal Employment Offers

An employee may overcome the presumption of the at-will employment relationship by showing clear and precise evidence of an oral employment contract for a definite term. Scully v. US WATS, Inc., +238 F.3d 497 (3d Cir. 2001). General representations to an employee indicating that he or she would be promoted or that his or her position was expected to last until retirement have been found insufficient to defeat the at-will nature of the employment relationship. See Ross v. Montour R. Co., +357 Pa. Super. 376 (1986); Darlington v. General Elec., +350 Pa. Super. 183 (1986). On the other hand, Pennsylvania courts have found that an employment contract existed where the employer and employee verbally discussed specific "deal points" with each other, including the anticipated period of employment and stock options that would vest over that anticipated period. Scully v. US WATS, Inc., +238 F.3d 497 (3d Cir. 2001).

Conditional Employment Offers

Any conditions that must be satisfied prior to beginning employment, such as the successful completion of background and reference checks or medical examinations, or the execution of an employment agreement should be explained in the written employment offer.

Employers should comply with all state and federal laws relating to background checks and medical examinations. Pennsylvania's requirements regarding post-offer medical examinations are consistent with federal requirements. Medical examinations must be job-related and consistent with business necessity. In administering post-offer medical examinations, employers should confirm that the examination is necessary for the position, ensure that job descriptions are accurate that identify the essential functions of the job and ensure that examinations are administered on a consistent basis to all job applicants.

If the employer requires an employee to sign an employment agreement as a condition of employment, employers should specifically state in the offer letter that the employee must execute an employment contract with definitive terms and conditions as a condition of employment. This language may be sufficient even in situations where restrictive covenants are part of the employment contract. By including this language employers may avoid the offer letter becoming a binding contract. See Pulse Technologies, Inc. v. Notaro, +2013 Pa. LEXIS 1097 (May 29, 2013).

Philadelphia Ban the Box

Philadelphia's Fair Criminal Record Screening Standards ordinance covers all employers in the city regardless of size. In addition, the ordinance prohibits employers from asking about an applicant's criminal history or conducting a background check until a conditional offer of employment been made. A conditional offer of employment is defined as an employment offer, which may be withdrawn only if the employer subsequently determines that applicant has a conviction record, which based on an individualized assessment would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or does not meet other legal or physical requirements of the job.

The individualized assessment must include:

  • The nature of the offense;
  • The time that has passed since the offense;
  • The applicant's employment history before and after the offense and any period of incarceration;
  • The particular duties of the job being sought;
  • Any character or employment references provided by the applicant; and
  • Any evidence of the applicant's rehabilitation since the conviction.

An employer may give notice, to prospective applicants or during the application process, of its intent to conduct a criminal background check after any conditional offer is made, provided that such notice is concise, accurate, made in good faith, and shall state that any consideration of the background check will be tailored to the requirements of the job. An employer must also conspicuously post a notice in plain sight on the employer's website and premises a summary of the ordinance's requirements.

The law notes that employers can only go back seven years in considering an applicant's criminal record. The ordinance also bans employers from adopting a blanket policy that automatically excludes an applicant with a criminal conviction from a particular job or class of jobs. See Interviewing and Selecting Job Candidates: Pennsylvania.

Withdrawal of Employment Offers

Pennsylvania does not require employers to notify unsuccessful job applicants of their hiring decisions. If, however, an employer withdraws an employment offer based, in whole or in part, on an individual's criminal history record information, the employer must notify the applicant in writing. +18 Pa. C.S. § 9125.

If an employer determines that it must withdraw or rescind an employment offer, it should do so, in writing, as quickly as practicable. An employer may face potential exposure if an employee has taken action in reliance on the employment offer.

In particular, Pennsylvania has recognized claims for detrimental reliance, or promissory estoppel, where an employee accepted an employment offer, discontinued further job search efforts and relocated to begin working. See Travers v. Cameron County, +544 A.2d 547 (Pa. Commw. Ct. 1988). To establish a claim for detrimental reliance, the following elements must be shown:

  1. The promisor made a promise that would reasonably be expected to induce action or forbearance on the part of the promise;
  2. The promisee actually took action or refrained from taking action in reliance on the promise; and
  3. Injustice can be avoided only by enforcing the promise. Peluso v. Kistner, +972 A.2d 530 (Pa. Commw. Ct. 2009).

To minimize the chance that an employee has already taken action in reliance upon an employment offer, an employer should take action quickly if it determines that the offer must be rescinded.

Local Requirements

Philadelphia Ban the Box

Philadelphia's Fair Criminal Record Screening Standards ordinance covers all employers in the city regardless of size. In addition, the ordinance prohibits employers from asking about an applicant's criminal history or conducting a background check until a conditional offer of employment been made. A conditional offer of employment is defined as an employment offer, which may be withdrawn only if the employer subsequently determines that applicant has a conviction record, which based on an individualized assessment would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or does not meet other legal or physical requirements of the job.

The individualized assessment must include:

  • The nature of the offense;
  • The time that has passed since the offense;
  • The applicant's employment history before and after the offense and any period of incarceration;
  • The particular duties of the job being sought;
  • Any character or employment references provided by the applicant; and
  • Any evidence of the applicant's rehabilitation since the conviction.

An employer may give notice, to prospective applicants or during the application process, of its intent to conduct a criminal background check after any conditional offer is made, provided that such notice is concise, accurate, made in good faith, and shall state that any consideration of the background check will be tailored to the requirements of the job. An employer must also conspicuously post a notice in plain sight on the employer's website and premises a summary of the ordinance's requirements.

The law notes that employers can only go back seven years in considering an applicant's criminal record. The ordinance also bans employers from adopting a blanket policy that automatically excludes an applicant with a criminal conviction from a particular job or class of jobs. See Interviewing and Selecting Job Candidates: Pennsylvania.

Philadelphia Credit Information

An amendment to Philadelphia's Fair Practices Ordinance prohibits an employer from seeking or using an applicant's or employee's credit information in connection with the hiring, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment of that applicant or employee. Credit information is defined as any written, oral, or other communication of information regarding a person's:

  • Debt;
  • Credit worthiness, standing, capacity, score or history;
  • Payment history;
  • Charged-off debts;
  • Bank account balances or other information; or
  • Bankruptcies, judgments, liens, or items under collection.

However, the ordinance does not apply to law enforcement agencies and financial institutions, to the City of Philadelphia when obtaining information regarding taxes or other debts owed to the city or if the information must be obtained pursuant to state or federal law. In addition, the following positions are exempt:

  • A job that requires an employee to be bonded under city, state, or federal law;
  • A job that is supervisory or managerial in nature and involves setting the direction or policies of a business or a division, unit or similar part of a business;
  • A job that involves significant financial responsibility to the employer, including the authority to make payments, transfer money, collect debts, or enter into contracts, but not including handling transactions in a retail setting;
  • A job that requires access to financial information pertaining to customers, other employees, or the employer, other than information customarily provided in a retail transaction; or
  • A job that requires access to confidential or proprietary information that derives substantial value from secrecy.

In these situations, if an employer relies on the credit information when making an adverse employment action it must disclose this to the person in writing identifying the information relied upon and give the employee or applicant an opportunity to explain the circumstances surrounding the information before taking any such adverse action.

Future Developments

The City of Philadelphia passed an ordinance amending Philadelphia's Fair Practices Ordinance prohibiting employers from:

  • Inquiring about or requiring a prospective employee to disclose his or her wage history;
  • Conditioning employment or consideration for an interview or employment on the disclosure of wage history;
  • Retaliating against a prospective employee for failing to comply with any wage history inquiry; or
  • Relying on the wage history of a prospective employee from any current or former employer to determine the wages for the individual at any stage in the employment process (including the negotiation or drafting of an employment contract).

Wages means all earnings of any employee, regardless of whether determined on time, task, piece, commission or other method of calculation and including fringe benefits, wage supplements, or other compensation whether payable by the employer from employer funds or from amounts withheld from the employee's pay by the employer.

The Philadelphia Commission on Human Relations issued regulations interpreting the ordinance. The regulations define a covered employer and applicant. In particular, in addition to the definition of employer under Fair Practices Ordinances Sec. 9-1102(1)(h) an employer is one that engages in the process of interviewing applicants with the intention of filling a position located within the City.

Further, a prospective employee is defined as an individual who is seeking a position with a new employer, and with whom the employer is considering hiring for a position within the City. Also, if an individual is seeking a new position that is located in Philadelphia with the current employer, the prohibitions on inquiries into wage history will apply with respect to the employee's wage history from any previous employer.

An employer may rely on a prospective employee's wage history if the applicant knowingly and willingly disclosed his or her wage history to the employer.

Further, according to the regulations, an employer may also ask a prospective employee questions relevant to the setting of a future salary, such as the applicant's salary requirements or expectations, skill level and experience relative to the position the applicant is being considered.

This law will not apply to any actions taken by an employer pursuant to any federal, state or local law that specifically authorizes the disclosure or verification of wage history for employment purposes.

The law also contains notice-posting requirements. See Employee Communications: Pennsylvania.

The ordinance was scheduled to take effect May 23, 2017. However, the US District Court for the Eastern District of Pennsylvania has entered an order postponing the enforcement of the law prohibiting employers from seeking salary history information pending the outcome of the Chamber of Commerce for Greater Philadelphia's request for an injunction.

On April 30, 2018, a federal court issued a ruling that the provision of the law that prevents employers from inquiring about or requiring a prospective employee to disclose his or her wage history violates the First Amendment's free speech clause. As a result, the court issued a preliminary injunction temporarily blocking that provision pending resolution of the case.

However, the court held that the ordinance's reliance provision - making it unlawful for employers, employment agencies, or their employees or agents to rely on a prospective employee's wage history to determine his or her salary - withstands constitutional scrutiny. The court reasoned that an employer's reliance on wage history is not speech. Chamber of Commerce for Greater Phila. v. City of Phila., +2018 U.S. Dist. LEXIS 72758 (April 30, 2018).

Additional Resources

Employment Offer: Federal

How to Make an Employment Offer

How to Make a Conditional Employment Offer

Employment Offer Letter