Make legally smart job offers; avoid ‘implied’ contracts

Issue: Legal problems that stem from inadvertent comments at the job-offer stage.

Risk: Imprecise wording of an offer could lock you into an 'implied contract' with the employee.

Action: Ask to review all written job offers, before they're made, and run them through the following checklist.

When it comes to making job offers, your hiring managers could be inadvertently locking your organization into an employment contract with the new hire. It's a common mistake, and only a few misplaced words can sink you.

Employers who use written job-offer letters run the highest risk of creating implied promises. That's why it's best to avoid letters and stick with oral offers.

Interview Bootcamp D

But that's difficult if candidates want the offer in writing. To avoid creating any job-security promises, follow these six do's and don'ts:

1. Do explain that the candidate is being hired 'at will,' meaning the organization can terminate his or her employment at any time for any nondiscriminatory reason. Include at-will statements in offer letters and employee handbooks.

2. Don't imply job security with statements such as, "You'll be able to grow here" or "You have a long career here." Specify the job's starting date, but keep out any reference to length of employment.

3. Don't describe job responsibilities. Cite the name of the new hire's boss and explain that they'll meet on the first day to discuss duties.

4. Do clarify that continued employment depends on several things, including following organization policies and procedures. Cite job-offer contingencies, such as signing a nondisclosure agreement or drug test.

5. Don't cite an annual salary figure. Courts could see that as a one-year hiring commitment. Instead, specify how much the employee will receive each pay period.

6. Don't ask new hires to sign offer letters. But keep a copy in your files. If you make the offer orally, keep notes of what you promised.

Online resources: You can buy a generic offer letter at www.laborforms.com. Find offer letters tailored to each state's laws at www.findlegalforms.com (click on "Employment Forms" and then "Employ-ment Offer Letter").

Case study: The power of ‘at-will’ statements

After an employee was fired for allegedly invading a co-worker's privacy, she sued, claiming that the company handbook created an "implied contract" by saying employees couldn't be fired without undergoing progressive discipline.
But a court tossed out her lawsuit, noting that every page of the handbook contained a disclaimer saying that the policies didn't create an employment contract. Plus, the disclaimer said that workers were employed "at will," meaning they could be terminated at any time for any nondiscriminatory reason. (Foster v. Massachusetts Mutual Life Insurance Co., No. 3:02CV1433(PCD), DC Conn., 2004)
Tip: If your handbook does lay out progressive-discipline procedures, make sure it also reserves the right to fire immediately for gross misbehavior.
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