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March 12, 2009



I think the US state in which the job is offered matters for this question, but I think generally at-will work means employers can put down whatever conditions they like as long as they don't discriminate arbitrarily. Further, I think jobs like this are actually not that uncommon, though most employers really don't want to hire someone who will fail. After all, even if you don't pay them very much until they pass the test, it still leaves you with an unfilled position after however long.

Nathan Smith

Oh, but you misunderstood my question. What I'm asking is: Could an employer promise a job that starts *only after* the candidate passes a test? Meaning, that they don't pay them, give them an office, etc., until they've proven the skill?


Ooooh. I thought it was a deal where there's essentially unpaid overtime. I get you now. Judging from my lawyer friends, this is the ordinary way in which lawyers get hired: they go through the interview and selection process while still in school and just after graduating and then get job offers contingent on passing the bar within a certain time frame. Assuming that the bar exam doesn't have special status, I can't imagine that a company-administered test would be legally questionable. I guess there might be problems with showing that the test isn't arbitrary, if challenged.

However, if one wants to be sure of someone passing the test, there might be temptation to make the offer to several people for a single position. I think there are restrictions on the reasons for which a firm can retract a bona-fide job offer, if the recipient of the offer fulfills all the stated requirements. A company-administered test would certainly create a conflict of interest, though I admit I'm not qualified to say what the significance would be.

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