Rescinding a job offer is unfortunate and should only happen in rare instances when there are no realistic alternatives, such as when an employer is downsizing. To provide guidance in cases when an employer must rescind an offer, the NACE Principles for Ethical Professional Practice Committee offers a review of the relevant legal and ethical issues, identifies the key roles of career centers and the NACE Principles for Ethical Professional Practice, and makes recommendations for resolving individual situations fairly.

Legal Considerations

In general, candidates who have an offer rescinded do not have much legal recourse. Although it varies from state to state, unless otherwise specified, employment is “at-will,” meaning either the employer or the employee can terminate the employment relationship at any time, with or without cause and with or without notice. Consequently, candidates often have a difficult time enforcing a job offer or recovering damages for a rescinded offer when the employer is free to terminate the employee at any time, including before the employee actually starts working.

That said, there are some circumstances in which a candidate may have legal recourse if an employer rescinds a job offer. The candidate may be able to pursue a claim against the employer under one of the following legal theories: 1) promissory estoppel, 2) fraudulent misrepresentation, 3) breach of contract, 4) unlawful discrimination.

Promissory Estoppel: Promissory estoppel is a legal theory pursuant to which individuals can attempt to enforce a “promise” if they relied upon such a promise to their detriment. Under the theory of promissory estoppel, an employer may be held liable if the promise of employment results in a tangible loss of some kind to the candidate. Generally, such a claim arises when an employer makes a job offer and the candidate, in relying on the offer, can establish that they lost or gave up something of value in order to accept the offer. Examples of such losses include a candidate leaving an existing job or incurring moving expenses to relocate for the job that an employer offered, but later rescinded.

The potential for recovery varies from state to state, but some courts have found that even if the employment relationship is “at-will,” the candidate is nevertheless entitled to the damages incurred as a result of the candidate’s “detrimental reliance” on the offer. It is highly unlikely, however, that an individual will receive the job that was promised. Additionally, there must be a definitive offer of employment, not one that is merely speculative in nature, in order to form the foundation of a promissory estoppel claim.

Fraudulent Misrepresentation: To maintain a claim of fraudulent misrepresentation, a candidate must establish that the employer made the offer knowing it was false and intended for the applicant to rely upon it. To establish a prima facie fraudulent misrepresentation claim, the candidate must prove the following: 1) a false representation was made; 2) the employer making the representation did so with the knowledge that it was false, belief that it was false, or reckless disregard that it was false; 3) the employer making the false representation intended for the candidate to rely on it; 4) the candidate did, in fact, rely on the representation; and 5) the candidate suffered damages as a result of their reliance on the false representation.

For example, a claim of fraudulent misrepresentation may arise when a company offers an individual, who is currently employed, a position with its company. The individual then quits their current position and moves to the company’s location. Upon arriving at work, the individual is informed that the offer is rescinded because the employer is closing the location, a fact that was known by the employer prior to offering the individual employment. In this situation, the employer fraudulently represented the facts to the individual, despite knowing that acceptance of the offer would require the individual to quit their job and move their family; as such, the individual may be able to establish a claim for fraudulent misrepresentation.

While this is a difficult case to prove, depending on state law, a candidate who prevails under a claim for fraudulent misrepresentation may be entitled to past and future lost earnings, i.e., back pay and front pay, in addition to possible punitive damages, which are additional damages based on the egregious nature of the defendant’s actions.

Breach of Contract: If an individual can prove a contractual relationship, above and beyond an employment at-will relationship, they may have a cause of action for breach of contract against an employer when an offer is unexpectedly withdrawn. This means that the offer was put into writing with specific provisions creating a contractual employment relationship that goes beyond the standard at-will employment relationship.

For example, when an offer and acceptance specify a length of time of employment and/or that employment may only be terminated for “just cause,” a contractual relationship exists between the parties. If an employer thereafter rescinds the offer, the individual may bring a claim for breach of contract against the employer. A candidate who is successful with respect to such a claim may obtain the total value of the contract, i.e., the total amount of money that they would have earned for the duration of the contract, including an amount reflecting the value of lost employee benefits. Although attorneys' fees are not mandatory with respect to such claims, written employment contracts often provide for the award of such fees to the prevailing party.

On the other hand, a candidate who fails to adhere to the terms of the agreement must also be wary of a claim for breach of contract. If a candidate reneges on an employment agreement after acceptance, the employer may file a lawsuit against the candidate for breach of contract. In this case, the employer could potentially recover damages from a candidate for the costs incurred in replacing the candidate or lost profits due to having no employee in the position until a replacement is hired.

Discrimination: Candidates should also be wary of the reasoning behind an employer’s revocation of an offer. If a candidate believes the revocation is based on an impermissible factor, e.g., race, color, religion, age, disability, sexual orientation, gender identify, gender, transgender status, national origin, marital status, veteran status, pregnancy, or child birth, or any other characteristic protected by state, local, or federal law, statute, or regulation, the candidate may have a viable claim against the employer for unlawful discrimination. Candidates should consult an employment law attorney to determine the complete list of impermissible factors in the state or locality where they reside and/or would have worked for the employer that revoked the offer of employment.

For example, if the revocation comes after the employer determines the candidate’s religious background or discovers the candidate has a disability, the candidate could consider filing a claim for discriminatory failure to hire.

Does a Signing Bonus Alter the Normal Employment At-will Relationship?

As a practical matter, accepting a signing bonus forms a legal commitment by the job candidate to work for the employer. Unless there is a contract indicating otherwise, however, it is likely that the employment relationship will remain at-will. As such, consistent with at-will employment, both the employee and employer can terminate the employment relationship at any time thereafter.

In the event that the employee resigns shortly after receiving a signing bonus from the employee, however, it is very likely that the employer will seek repayment of the signing bonus from the employee, depending on the terms of any agreement between the parties regarding the signing bonus. To avoid post-termination issues, employers should provide such signing bonuses only pursuant to a written agreement that clearly defines the employee’s commitment in exchange for the bonus, e.g., the employee will often be required to work for the employer for a defined period of time after receiving the bonus in order to avoid repayment obligations. Generally, such agreements will indicate what an employee’s requirements are with regard to repayment should employment terminate—whether voluntarily or involuntarily—earlier than anticipated by the agreement. From the employer's perspective, such agreements must be clearly drafted so that the status of employment is not altered and the employment remains at-will notwithstanding the employee's requirement to work for a defined period of time to avoid repayment obligations.

Notwithstanding the foregoing, if an employer provides an individual with a signing bonus prior to the commencement of employment without a written agreement, the employee may have no legal obligation to return the bonus upon termination. Absent such a written agreement, the employer’s only legal recourse may be a claim for unjust enrichment against the individual. An unjust enrichment claim arises when a party alleges that the other party unfairly obtained a benefit at its expense. In this case, the employer paid the signing bonus with the expectation that the individual would work for the employer. The individual’s acceptance of the bonus and subsequent failure to work for the employer may form the basis for an unjust enrichment claim.

Further, at least one court has held that the language of an offer letter can determine when a signing bonus vests, requiring payment to the candidate by the employer. A candidate may be entitled to payment of the signing bonus, regardless of whether employment has actually commenced, if the offer letter suggests that the bonus “vests” upon acceptance of the offer. If, on the other hand, the signing bonus is payable to the candidate only upon commencement of employment, the employer, generally, has no legal obligation to provide payment if the candidate never actually starts working. As such, the candidate should have a clear understanding of the parameters surrounding the payment of the signing bonus, both in terms of when their entitlement to the bonus vests and the amount of time, if any, that they must work for the employer thereafter to avoid repayment obligations.

Ethical Considerations

Because laws are not intended to regulate all conduct or to remedy all harm, ethical principles are also important for managing our dealings with others. If an action results in injury to someone, where no firm rules or prescriptive standards exist, we seek to negotiate fair resolutions for individual situations. We try to achieve outcomes that everyone can live with, even if the terms are not fully satisfactory to all.

No one should deny that there is damage incurred as a result of a rescinded offer. For the employer, there are short-term, unrecoverable recruiting costs, including lost employee time. Longer term, there is loss of credibility and reputation on campus.

For the job candidates, the losses are more personal. All of them have lost time and opportunity for significant earnings. They must restart their job searches, often after having declined other job offers. In some cases, candidates have already relocated before their job offers were revoked, leaving them with potentially significant moving and lodging costs. Some candidates have even incurred medical costs in attempting to cope with their anxieties, disillusionment, and frustration.

Career services professionals experience losses as well. They must endure knowing that much of their good work in carefully cultivating relationships with employers is at risk. They share the disappointment and frustration of students because their efforts to help them, ultimately, were unsuccessful. In addition, students may question the value of career services programs.

If an employer must revoke an offer, the employer should let the candidate know as soon as possible. The employer should also consider offering some type of assistance to help the student get back into the recruiting process, such as providing outplacement services or a stipend to help the student cover expenses.

The Key Role of Career Services

This advisory opinion is focused on how to best address the immediate consideration: the student’s deferred or revoked offer. Career centers will also want to consider how they will address ongoing relations with employing organizations that have a pattern of deferring or rescinding offers.

Career center professionals have resources for resolving individual problems and restoring equilibrium to campus recruiting programs. (Note: “Campus recruiting” refers to the various offerings of the career center that help students and employers connect, e.g., career fairs, job postings, on-campus interviews, and so forth.) They can assist students in regaining their balance and help them to salvage their employment campaigns, even for students who have found their opportunities outside of campus recruiting. They can advocate and mediate equitable resolutions to the students’ hardships. Career center staff can also counsel employers on how to minimize damage to their reputation, restore their credibility, enhance their campus recruiting efforts, and start fresh.

The Role of the NACE Principles

Although the NACE Principles do not address rescinded offers directly, three of the Principles can guide professionals facing this challenge. They are:

• Principle 1: Practice reasonable, responsible, and transparent behavior;
• Principle 2: Act without bias; and
• Principle 4: Comply with laws.

Further, the NACE Principles are based, in part, on maintaining a recruitment process that is “fair and equitable.” Together, these can guide professionals in addressing the challenge.

Recommendations for Employers

Consistent with the principles cited above, the NACE Principles Committee urges a two-part approach to employment offers under consideration for revocation. The first emphasizes the need for a commitment to high standards in recruiting. The second offers a reasoned approach to dealing with rescinded and deferred offers. Regardless of the approach taken, however, employers must be consistent in the application of their actions to avoid any claims for discrimination under federal or state laws.

1. Employers should root their campus recruiting programs and processes to a solid understanding of the NACE Principles, which provide guidance that can help employers both avoid having to rescind or defer offers and manage such situations if they do arise. Employers will want to consider how they actualize Principle 1—to “practice reasonable, responsible, and transparent behavior that consciously avoids harmful actions.” Further, in that effort to be responsible and transparent, employers will want to consider “clearly articulating and widely disseminating the organization’s policies and guidelines,” in an effort to comply with Principle 2—to “act without bias.”

2. As a practical consideration, employers are encouraged to do their utmost to minimize the negative consequences to candidates when they must change their commitments to them. The NACE Principles Committee recommends the following:

• Consider alternatives that do not require rescinding employment offers. These may include changes in job responsibilities, salary reduction and/or reduced work weeks, changes in job locale, delayed starting dates, remote work options, and other reasonable options.

If an employer must revoke an offer, the employer should let the candidate know as soon as possible and consider offering some type of assistance to help the student get back into the recruiting process. Such assistance could include:

• Reimbursing the candidate for expenses incurred in the acceptance of employment, such as travel and relocation expenses.
• Providing the candidate with short-term financial assistance.
• Offering the candidate services to secure other employment.
• Providing the candidate with a written statement that the offer has been revoked. This may help the candidate secure a job offer that was turned down in favor of the offer that has now been revoked.

It should be noted that any form of compensation provided to the candidate could create unanticipated legal consequences, including a claim by a candidate that the payment is evidence of the actual existence of an employment relationship and therefore of rights to certain employment laws, e.g., unemployment compensation, workers' compensation, and so forth. Accordingly, employers must be mindful of the legal ramifications prior to providing the candidate with any monetary consideration if an offer is revoked or rescinded.

These actions benefit the affected candidates by offering fair consideration for their losses. Equally important, these actions also benefit the employer’s university relations efforts by minimizing the damage to its reputation.

3. The employer should alert the candidate about the changes in employment status or commitment, as well as the status of any preemployment background check, as soon as possible to enable the candidate to make informed and timely decisions regarding other employment opportunities and options.

4. The candidate should alert the employer about any changes in employment status or work authorization status as soon as possible to enable the employer to make informed and timely decisions regarding the candidate’s employment opportunities and other options. International students filing for optional practical training (OPT) or other changes to their work authorization status should speak with their career center and office of international affairs regarding options.

5. In accordance with confidentiality requirements and laws, and with the agreement of the candidate, employment professionals can notify the candidate’s career center that the offer has been deferred or rescinded. The career center’s involvement can be beneficial to the student and employer. For example:

• The career center staff can provide the candidate with services to help with gaining other employment.
• The staff can advise the employer on how to minimize damage to the organization’s reputation and recruiting effectiveness.

6. If employment professionals opt to delay the candidate’s starting date in lieu of revoking the job offer, they should maintain regular contact with the candidate before the start date. Doing so will help keep the candidate well-disposed toward the employer. However, it is important that both the employer and the candidate understand that the candidate may decide to accept another offer during this period, as the deferred offer could ultimately become a rescinded offer.

While this proposal may not provide a perfect resolution to a revoked offer, it does offer the candidate consideration of some value. More important, it gives everyone involved—employers, candidates, and career services professionals—an opportunity to restart the job-search process and move onward.

Conclusion

The campus recruiting process has succeeded for many years in large part because the NACE Principles provide employers, students, and career centers with a framework to make their cooperative efforts successful. Using the NACE Principles as our guide and based on the concept of fairness, our recommendations offer a route to reconcile individual situations when employers feel compelled to rescind or defer accepted job offers. We also offer this document as a way to maintain a climate of trust and keep the campus recruiting process on track.

Reviewed and revised by the 2024 Principles for Ethical Professional Practice Committee.