Growing and adding new talent to your team is exciting for any business. But, before you onboard your new hires, you should be mindful to include these items in your offer letters:
- At-Will Employment: Your offer letter should, if applicable, affirm the at-will employment relationship between your business and the new hire. Otherwise, new hires may argue that their employment relationship with you is not “at-will.” To help avoid this, we recommend that your offer letters include a provision as follows:
“Your employment is for no specific period of time. Your employment with the Company is "at will," meaning that either you or the Company may terminate your employment at any time, for any reason or no reason, with or without cause. Any contrary representations that may have been made to you are superseded by this offer letter.”
- Offer is Contingent/Conditioned on Certain Items: Your offer letter should list the items for which an employment offer is contingent upon—e.g., the successful completion of the I-9 Form and completion of any required background (and/or reference) checks. To this end, we suggest your offer letters include language as follows:
- I-9 Compliance: “This offer is contingent upon the verification of your right to work in the United States, as shown by your completion of the Form I-9 upon hire and your submission of acceptable documentation (as noted on the Form I-9) verifying your identity and work authorization within three days of starting employment.”
- Background Check: “This offer is contingent upon your satisfactory completion of a background search, for which the required notice and consent forms are enclosed.”
- Ability to Rescind Offer: It is also important to inform the prospective employee that if the above conditions are not met or satisfied, you reserve the right to rescind the offer:
“This offer will be withdrawn if any of the above conditions are not satisfied.”
- Contractual Obligations: Before new talent joins your team, you want to be aware of any existing contractual obligations they are under from their previous employer (such as non-disclosure or confidentiality agreements) that could impose continuing obligations on your new hire. Being aware of these obligations is important so that you do not negligently induce your new employee to breach any of these obligations. To this end, your offer letters could include language as follows:
“By accepting this offer, you confirm that you are able to accept this job and carry out the work involved without breaching any legal restrictions on your activities, such as restrictions imposed by a current or former employer. You also confirm that you will inform [EMPLOYER NAME] about any such restrictions and provide [EMPLOYER NAME] with as much information about them as possible, including copies of any agreements between you and your current or former employer describing any restrictions on your activities.”
Including these items in your offer letter not only prevents ambiguity but also protects you in the event that your new hire fails to satisfy his or her contingencies or fails to provide you the information you need so that you do not accidentally induce your new hire to breach any continuing obligations he or she is under.
