“Conditional Offer of Employment” – What Does It Mean?

A conditional offer of employment is a job offer contingent on you first meeting certain conditions or requirements before starting the job. The conditions often include successfully passing certain aptitude tests, background checks, drug screenings, or a physical exam.

Conditional job offers may also have time limits for meeting the qualifications.

If an employer makes a contingent offer, it cannot be dependent on an illegal discriminatory basis. An employer cannot condition a job for a reason that discriminates against you based on your protected status.

Below, our California labor and employment law attorneys discuss the following frequently asked questions about conditional offers of employment in California:

• 1. What is a conditional offer of employment?
• 2. Can an employer withdraw a conditional offer of employment?
• 3. What kinds of conditions can an employer require?
• 4. What are illegal job offer conditions?
• 5. Can an employer withdraw a job offer if they find out about my criminal conviction?
• 6. What should I do if an employer withdraws a job offer based on my criminal conviction?
• Additional resources

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

If an employer makes a conditional job offer, it cannot be dependent on an illegal discriminatory basis.

1. What is a conditional offer of employment?

A conditional offer of employment is a job offer that is based on you meeting certain requirements before starting the job or continuing the job. The conditions on the job offer can include any number of additional steps or requirements.

These conditions are generally based on the specific needs of the job, job duties, and job responsibilities. Typical employment conditions may include:

• Drug testing
• Background investigations
• Credit checks
• Satisfactory reference checks
• Pre-employment physicals
• Successful completion of licensing requirements

Example: Jamie applied for a new job as a forklift operator at Acme Warehouse. After the interview process, the manager at Acme Warehouse sent Jamie a conditional contract of employment. The offer said Jamie was offered the forklift operator job once he went through the forklift operator training course, passed the examination, and passed a drug test.

Based on this job offer and Acme’s hiring process, once Jamie completes the training, passes the examination, and passes a drug test, he will be able to start work as a forklift operator at Acme Warehouse.

In contrast, an unconditional offer is a job offer with no eligibility preconditions.

2. Can an employer withdraw a conditional offer of employment?

A conditional offer of employment can be withdrawn if you do not meet the conditions of the offer. If there is a time limit to meet the conditions, the employer can also withdraw the offer after the time limit passes and the conditions are not met.

Example: Kyle applied for a full time job as a pizza delivery driver. The manager said Kyle could have the job once he provided a copy of his driving record and showed proof of insurance. Kyle didn’t have car insurance and needed to wait a couple of weeks before he would have enough money to buy insurance.

The manager called up Kyle and said the offer was withdrawn because Kyle never showed proof of car insurance before the job’s start date.

However, an employer can also generally withdraw an offer for almost any lawful reason or for no reason at all. Employers generally have the right to withdraw a conditional offer of employment even if you met the conditions.

Most jobs in California are considered “at-will.” This means you can leave a job for any reason and an employer can terminate you for any non-discriminatory reason. Similarly, an employer can generally withdraw a conditional offer of employment for any non-discriminatory reason. (For more discussion, see our article on employment at will in California and exceptions to it.)

Example: Larry applied for job selling computers to companies. The job required extensive travel and driving. The manager gave Larry a conditional letter of employment based on Larry providing proof of car insurance, passing a background check, and having a clear driving record.

Larry was excited to get the job offer and got all the necessary records and passed the drug test. Larry went to the manager to ask when his first day of work would begin. The manager said she changed her mind about hiring Larry. Larry drove a green car and the manager hated green cars and said she would never hire someone who drove a green car.

Even though Larry satisfied the conditions of employment, the manager could still withdraw the offer based on any non-discriminatory reason. There is no protection for new employees or applicants based on car color.

3. What kinds of conditions can an employer require?

An employer can require just about any type of condition that is not unlawful or discriminatory employment protection. Discrimination in hiring based on certain protected categories is a violation of California law. This includes conditions based on:

• Race,
• Physical disability,
• Medical condition,
• Marital status,
• Sex,
• Age,
• Sexual orientation,
• Military status, or
• Other protected status. 1

Generally, conditions are based on specific requirements that have to do with the job, or on broader conditions, including:

• Background checks,
• Drug tests, or
• Physicals.

Employers may condition a job on passing medical or psychological exams but generally only if these exams are related to the job and consistent with a business necessity.

4. What are illegal job offer conditions?

Any conditions that are based on a protected status may be unlawful. For example, a job offer conditioned on you showing you were a member of a certain church may be discrimination based on religion. A job that was conditioned based on providing a copy of a marriage certificate may be discrimination based on marital status.

Even if the condition appears to be neutral, it may be illegal if it is used as a way to discriminate against employees.

Example: Mark applied for a job as an ambulance driver with Speedy Ambulance. The owner of Speedy Ambulance offered Mark a conditional job offer letter. The condition is Mark passing a physical related to the job duties to show that Mark can safely operate a vehicle carrying patients and others.

The owner reviews the medical examination and discovers that Mark was a female at birth. The owner of the ambulance company does not want to hire Mark based on Mark’s gender identity. Even though the condition of passing the medical exam may have been legal, using it to discriminate against a prospective employee based on gender identity is unlawful in California.

5. Can an employer withdraw a job offer if they find out about my criminal conviction?

Under California’s “ban the box” law, employers are prohibited from asking about your criminal history before the employer has made a conditional offer of employment. 2

After making a conditional job offer, a company cannot automatically exclude you for having a criminal conviction. Instead, an employer is required to perform an individualized assessment of you. 3

An employer is required to consider a number of factors in deciding whether or not to withdraw an offer of employment after learning about a criminal conviction. These factors include:

• Whether your conviction history has a direct and adverse relationship with the specific job duties;
• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and completion of the sentence; and
• The nature of the job held or sought. 4

Example: Nancy is applying for a job as a cashier at a grocery store. Owen, the human resources manager, offers Nancy the job conditioned on her passing a background check. As part of the background check, Owen discovers that Nancy was convicted of driving under the influence of alcohol 8 years ago. Owen tells Nancy the job is no longer available based on her criminal conviction.

Owen cannot deny Nancy the job based on having a criminal conviction. Owen needs to perform an individualized assessment of the applicant.

The DUI conviction does not appear to have a direct relationship with the cashier job, a first-time DUI in California is generally a misdemeanor offense and may carry no jail time, and the single DUI conviction occurred 8 years ago. Based on this assessment, it does not appear that Owen has a reasonable basis for denying Nancy the job based on the criminal conviction for drunk driving.

Example: Peter is applying for a job as a bank teller. Quentin, the bank manager, gives Peter an offer of employment letter saying that Peter can have the job once he passes the background check. Peter’s background check shows Peter was convicted of embezzlement from his job at an accounting firm. Peter was convicted of the felony offense 4 years ago and spent 2 years in prison.

Embezzlement appears to have a direct relationship to the job title of a bank teller. A felony conviction that results in 2 years in prison is a serious offense. The conviction occurred in the past 4 years. The job of a bank teller involves handling large sums of money. Based on this analysis, Quentin may have a reasonable basis for denying Peter the job based on the prior criminal conviction.

6. What should I do if an employer withdraws a job offer based on my criminal conviction?

An employer in California cannot withdraw a job offer based on a criminal conviction unless the employer has done an individual assessment. If the employer decides not to hire you after assessing your criminal record, the employer must provide written notice to you and a chance to respond. 5

The employer may be violating California employment laws if the employer:

• Does not perform an individualized assessment,
• Does not notify you of the withdrawal based on your criminal record,
• Does not inform you of your chance to respond, or
• Does not consider your response.

If the employer violates your rights, you may be able to file a complaint or lawsuit against the employer for damages, including attorney’s fees and court costs. 6

Additional resources

For more information, refer to the following:

• The Fair Chance Act: Guide for Employers and Job Applicants – Overview by the California Civil Rights Department.
• The Limits of Ban-the-Box Legislation – Policy Brief by the Institute for Research on Labor and Employment (IRLE).
• 10 Common Job Interview Questions and How to Answer Them – Guide by Harvard Business Review.
• Everything You Need to Know About Job Searching in the Digital Age – Article in Business News Daily.
• What To Consider Before Accepting a Job Offer – Discussion by The Balance, a personal finance website.

Legal References:

1. Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”); see also the federal law Americans with Disabilities Act. See, e.g., Hastings v. Department of Corrections (Third Appellate District, 2003) 110 Cal. App. 4th 963.
2. California AB 1008 amends Fair Employment and Housing Act (FEHA) to add Government Code section 12952, effective date January 1, 2018.
3. Fair Employment and Housing Act 12952 (“(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following: (1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history. (2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.”)
4. Fair Employment and Housing Act 12952 (“(c)(1)(A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following: (i) The nature and gravity of the offense or conduct. (ii) The time that has passed since the offense or conduct and completion of the sentence. (iii) The nature of the job held or sought.”)
5. Fair Employment and Housing Act 12952 (“(c)(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following: (A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer. (B) A copy of the conviction history report, if any. (C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.”)
6. Fair Employment and Housing Act 12952 (“(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.”)