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 No matter the reason, employers should consult both state and federal law so that the offer is properly withdrawn to reduce exposure to claims made by the selected candidate.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 Cincinnati ordinance regarding salary history inquiries, effective March 13, 2020.
Updated to reflect Cincinnati, Ohio ordinance regarding salary history inquiries, effective March 13, 2020.
Updated to include offer and hiring requirements under the forthcoming Seattle Hotel Employees Job Retention Ordinance.
Updated to reflect the forthcoming Fair Chance to Compete for Jobs Act of 2019.
Updated to reflect addition of salary history law guidance.
Updated to reflect protections regarding salary history inquiries, effective January 1, 2020.
Updated to reflect change in applicability of Columbia ban the box law, effective December 3, 2019.
Updated to reflect forthcoming Waterloo ban the box ordinance.