Conditional job offers: what they are and when to use them

Published: September 4, 2024 | by Natasha K. A. Wiebusch, Marketing Content Manager at Brightmine

Conditional job offers are more than just popular. One might even say they’re standard. Remember that time your employer completed a background check on you? Or called your references?

Your job offer was likely contingent on you passing that background check… or at least one of your references answering the call.

As common as they are, these types of job offers have their nuances. Some conditions may not be easy to complete, or they might be impractical if you’re targeting top talent. Other conditions may even be illegal. This article covers everything you need to know about conditional job offers.

What is a conditional job offer?

A conditional job offer is an offer of employment that is contingent on the candidate meeting specific additional requirements that may or may not be disclosed in the job description. In many cases, conditional job offers include a specific date by when the candidate must meet conditions.

Conditional offers of employment are common in most industries. Recruitment teams generally use them to protect the organization and ensure the candidate is who they say they are.

Examples of job offer conditions

There’s certainly no shortage of additional requirements, or conditions, you can add to a job offer. The most common conditions include:

• Background checks.
• Credit checks.
• Drug testing.
• Physical exams.
• Proof of eligibility to work.
• Reference checks.
• Verification of education.
• Verification of previous employment.

If the organization is global or in search of highly skilled employees, common conditions might include:

• Obtaining a required certification or license.
• Obtaining the appropriate visa (international employees).
• Release from an existing employment contract.
• Release from an exiting non-compete agreement.
• Relocation to the city where the job site is.
• Security clearance.
• Signing a non-compete agreement.
• Signing a non-disclosure agreement.

Legal requirements and limitations on conditional job offers

Conditions that you place on a job offer have to meet certain legal requirements.

Non-discrimination

Most prominently, a conditional job offer can’t discriminate against candidates based on a protected class. Protected classes include race, sex, disability, religion, among others. To avoid discrimination, ensure that the conditions you place on a job offer are at minimum:

• Not discriminatory on their face.
• Applied in a non-discriminatory manner.
• Relevant to the job’s requirements.
• A business necessity.

Even if a condition is not obviously discriminatory, it may have a disparate impact on a group of employees. If the group is a protected class, the requirement may be discriminatory.

Below are two examples to help illustrate how conditional job offers can be discriminatory:

Other limitations on conditional job offers

There may be other requirements or prohibited conditions in your place(s) of operation. To stay compliant, review the relevant law where your company has employees before creating a conditional job offer. Also, consider contacting local counsel for assistance.

Federal laws to review when creating a conditional job offer

The following is a list of federal laws that impose requirements relevant to conditional job offers:

• Americans with Disabilities Act (ADA).
• Bankruptcy Reform Act of 1978.
• Fair Chance to Compete for Jobs Act of 2019.
• Fair Credit Reporting Act (FCRA).
• Title VII of the Civil Rights Act of 1964 (Title VII).
• Immigration Reform and Control Act (IRCA).

When to make your job offer conditional

As noted above, conditional job offers are a common practice among organizations in most industries. In fact, unconditional offers are rare.

So, the question may not be whether to make your job offer conditional. The better question is: Which conditions are appropriate for your organization and the job role? And, which ones aren’t?

When deciding what types of conditions are appropriate for your job offer, ask yourself the following questions:

• Is the condition relevant to the job role and necessary?
• Are we prepared to include the condition for all job positions if necessary?
• Does adding this condition align with our recruitment philosophy, our company values and our mission?
• Will adding this condition make it harder for us to recruit top talent in the job market?
• Are we legally required to include this condition?

Additionally, before making a job offer conditional, review your organization’s hiring processes. You’ll want to understand what your practices have been for specific departments and for that role. If you discover your organization has used conditional job offers inconsistently, you may want to reconsider. At a minimum, you’ll need to ensure that your practices become consistent moving forward.

Responsible hiring

Every employer needs to hire responsibly. For example, if you don’t conduct appropriate screenings, and the employee harms an employee, customer or other person, the company could become liable. Please note that whether a company is liable is a nuanced legal question that would require assistance from local counsel.

To prevent liability and other issues, employers need to establish responsible hiring processes. This will typically include ensuring all job offers include certain conditions to ensure safety, such as background checks. How involved these conditions should be will depend on the nature of the job role and the law.

IRCA

Under the Immigration Reform and Control Act (IRCA), employers cannot knowingly recruit or hire an “unauthorized alien.” Under the law, an unauthorized alien is someone who is not:

• Lawfully admitted for permanent residence, or
• Otherwise authorized to be employed in the US.

IRCA requires all employers to verify that the candidate is eligible to work in the US. Accordingly, this will generally be a condition of employment for employers with employees in the US. To verify a candidate’s eligibility, you must complete a Form I-9, Employment Eligibility Verification. Today, employers can also use E-Verify to complete verification obligations – and some employers must use it.

Conclusion

Conditional job offers are common, and they’re an essential tool for recruitment teams. However, they’re not always simple, and they require close attention and consideration. To get them right, leaders need to consider their practices, goals and the legal implications.

Do you need help with your conditional job offers? Explore the Brightmine HR & Compliance Center, formerly XpertHR tools and resources. Click below to start your free trial today.