Contingent Job Offers

Jun 6 11

When you find the person you want for a position, you should always make a ‘contingent offer of employment.’ Making a contingent offer of employment is a commitment to hire, subject to the candidate meeting the contingencies. Typically the offer is contingent upon successfully passing pre-employment drug testing, criminal background check and/or general reference check. There can be other reasons for making a contingent offer, as well. Whatever they are, make sure they are clearly stated. Once you make a contingent offer (and not before) you can ask the candidate for date of birth and SS#. There are the two critical pieces of information you will need to do a thorough background check. I recommend using a professional background checking organization to do this.


Note: If you do not say or write a contingent offer, it is as if you have made a firm offer with nothing else required of the candidate.


The contingent offer does not become binding until the applicant accepts it; therefore, you are free to change the terms or withdraw the offer if the applicant has not accepted the offer or detrimentally relied on it. If the applicant counters with different terms, you may consider your offer rejected and withdraw it. However, once they accept, you are bound by your employment offer.


A situation may occur where you find a better applicant after making a conditional offer. Be very careful before you rescind that offer if you have no basis (based on the contingencies) to do so. Once the conditional offer has been made (subject to further screening or the approval of the CEO, etc.), the applicant may have relied on the offer and given notice to his/her present employer.


If you revoke an offer after that notice was given, the applicant may lose that job, seniority and benefits. If the applicant has relocated to the new job in reliance on the offer, you may be held liable for resulting damages.


The reliance on an offer that causes detriment to an applicant may subject the employer to a lawsuit. Therefore, before withdrawing an offer of employment, I recommend consulting with legal counsel.
An applicant may seek double damages in a civil action if he/she was persuaded, influenced or enticed to move his/her place of residence based on misrepresentation about either the length of time a job would last, the character of a job, compensation or the existence of a labor dispute or strike.


CA Labor Codes allow an applicant to sue any person, agent or officer for double damages for knowingly making any false representation. In addition, you may be found guilty of a misdemeanor punishable by a fine of up to $1,000 or imprisonment up to six months, or both.


The hiring process is important for both the employer and applicant. Being clear about the hiring process and what the job entails (pay, benefits and start date) are essential to forming a good working relationship. Making an offer of employment, whether it is verbal or in writing, can be binding if the applicant accepts the offer. Therefore, it is important to be clear about contingencies and the approval process before offering an applicant a job. I recommend making job offers in writing, clearly stating all contingencies in the offer letter. You should also always include a time period for which the offer is valid.