You've trawled through piles of resumes, spent hours in an interview room and had several sleepless nights deciding which of several outstanding candidates is the best fit for the job. Once this process is over, it's time to send out an offer letter and to get your preferred candidate on board, as quickly as possible. However, you haven't had the time to run a background check yet. Don't worry; you can still keep up the momentum, using a conditional letter of employment.
A conditional letter of employment means the candidate will get the job, once certain conditions are met, such as a medical exam or reference checks.
Advertisement Article continues below this adA contingent or conditional offer of employment is exactly what it sounds like – an offer of employment that's conditional if certain requirements are satisfied. Those conditions could be anything you like, but most companies impose conditions such as:
If you do not make a conditional offer, then by default, the offer is an unconditional promise of employment, with nothing further required of the candidate. Essentially, what you're sending out is an employment contract. An unconditional offer become legally binding as soon as the candidate accepts it.
Article continues below this ad
A conditional offer also becomes legally binding as soon as the candidate accepts it – only now you have a "get out of jail free" card. If the candidate fails to complete the conditions or fails to pass the tests you've required, then there is no longer an offer of employment. The job offer will automatically become disabled, because the offer never became an unconditional promise of a job.
In reality, sending out a conditional letter of employment and having it fall away – because the conditions are not satisfied – may not be that different from changing your mind after sending out an unconditional offer of employment. Most workers in the U.S. are employed "at will" – which means that you can terminate their employment for any reason – or for no reason. In the same vein, you can revoke an offer letter – which is really just a promise of employment – for any reason or for no reason, as long as it is not discriminatory.
However, there have been cases in which disgruntled candidates sued the company after having their job offer rescinded, and judges have found in the candidate's favor. This is based on the legal doctrine of "promissory estoppel" which allows the courts to enforce a broken promise. The candidate could also sue for damages – if they relied upon the promise of employment and lost their job or seniority – as a result of you withdrawing the offer.
Article continues below this ad
In other words, if you want to buy some time to organize screening and other pre-employment checks, then it's definitely worth sending out an offer letter that's contingent upon these requirements. You should then be able to withdraw the offer based on the contingencies with a much lower risk of ending up in court, if the job offer gets retracted.
For small businesses who need to keep a tight focus on the quality of their hires, there are several advantages to using conditional employment offers. First and foremost, you cannot ask the candidate for his date of birth and Social Security Number before you make some kind of written approach, and these are the two critical pieces of information you need to run a thorough background check.
The Fair Credit Reporting Act, for example, requires that you notify candidates in writing and get their written consent to undergo a credit check. You could write to the candidate separately to ask for this permission, but the candidate might ask what's in it for him, unless the request is bound up in a job offer. If you withdraw an offer based on the results of the check, then you must inform the candidate and provide information on how she can dispute the information in the report.
Article continues below this ad
The Americans With Disabilities Act is another important piece of legislation. This act allows you to ask for a medical exam, but only after you've made a conditional job offer. Also, you must require that all candidates undergo the same exam.
The only downside of writing a conditional letter of employment – is if the person you've chosen is unwilling or unable to meet the conditions. This is more likely to happen if the person is not expecting a background check – if checks are not standard for this job role, for example – or if the requirements you've asked for are onerous, such as an impossible start date. In this scenario, you'll need to ask are your conditions reasonable? Or was this person just the wrong choice in the first place?
As a matter of best practice, you should include a deadline for completing the requirements in the conditional job offer letter. If the employee must satisfy a condition, for example, by providing her college transcripts, then you might give her 14 days to send the transcripts to you or you could take away the offer of employment.
Article continues below this ad
Equally, you should set a realistic deadline for upholding your side of the bargain. While an ethical employer, such as yourself, wouldn't take away a candidate's offer because you've had to postpone the drug screen, for example, it's unfair to leave the candidate hanging. Remember, she does not have an absolute promise of employment, until the conditions are satisfied. At some point, she'll need to hand in her notice and start making arrangements to join your company. It's in everyone's interests to make sure this happens sooner - rather than later.
T. DurdenHuman Resources ManagerPaper Street Soap Co.987 Town StreetAnytown, Minnesota 55123
Article continues below this ad
Marla Singer28 Oak LaneAnytown, Minnesota, 55123
It's our pleasure to offer you the position of junior chemical analyst at Paper Street Soap Co, which is a full-time exempt position, with a starting salary of $28,000 and a start date of July 1, 2019. This offer is conditional upon a mandatory drug screening carried out by an occupational health provider. This conditional offer is valid until May 31, 2019.
The screening test must be completed by no later than May 24, 2019. Please see the attached information regarding the test, together with contact and location information regarding the laboratory, as well as the hours of operation. This pre-employment drug screen is carried out in accordance with the company's substance abuse policy.
Article continues below this ad
Please also see the enclosed employee handbook for details as to your duties, and also for the medical and retirement benefits that our company offers.
If you agree to these terms, please sign below and return this letter in the next seven business days. We will then be in contact, after we have received the drug screen results.
Tyler DurdenHuman Resources ManagerPaper Street Soap Co.
Article continues below this ad