Author: Susan Tahernia
- Promotion decisions typically take into account a number of factors, including: an employer's needs; an employee's previous employment record, including the employee's job performance; the employee's potential for assuming greater responsibility; the employee's level of experience; and the qualifications and requirements of the position. See The Promotion Process.
- Job descriptions and employer policies and procedures guide promotion decisions. Employers should consult and follow each of these written policies and procedures, and then apply them uniformly. See The Promotion Process.
- In the case of a unionized employer, no promotion decision should be made without referring to the applicable collective bargaining agreement (CBA). The CBA may contain a section pertaining to promotions, the eligibility criteria for certain job classifications and the procedure for selection. See The Promotion Process and Labor Environments.
- Employers should use caution when relying on past performance for making promotion decisions. A wise employer scrutinizes performance appraisals for supervisor bias, complaint history and whether 360 performance evaluations were relied upon in making the promotion decision. See The Promotion Process and Using Past Performance Appraisals in Promotion Decisions.
- Qualification standards, employment tests or other selection criteria should not be used unless shown to be related to the position in question and consistent with business necessity. See Disparate-Impact Discrimination and Testing and Assessments.
- Background screening imposes additional responsibilities. While some form of screening is recommended, the background investigation may trigger rights and obligations under the Fair Credit Reporting Act. Employers must exercise caution in the use of criminal conviction or other information (for example, filing for bankruptcy) in selection decisions. Additionally, drug testing introduces a whole new set of issues that requires special consideration. See The Promotion Process and Screening Candidates for Promotion.
- Employers should be aware of their obligation to provide a reasonable accommodation in the administration of promotion tests. See Testing. Moreover, selection criteria that are related to an essential function of the job may not be used to exclude an individual with a disability if that individual could satisfy the criteria with the provision of a reasonable accommodation. See Promotion Discrimination.
- Review all promotion decisions for legitimacy. Examine compensation decisions in order to identify and correct potential compensation discrimination. Document selection decisions and maintain records in accordance with recordkeeping laws and regulations. See The Promotion Process.
- Government contractors must comply with regulations that apply to contracts with federal agencies. See Special Considerations for Government Contractors.
- Minimize discrimination and retaliation liability by ensuring proper training of supervisors. SeePromotions to Management Positions.
- Follow employer best practices when promoting employees. See Best Practices in Promotions.
The Promotion Process
Connecting Effort and Performance to Rewards
Employees want to be rewarded for a job well done, so it is important for employers to link job performance and effort to some type of reward. Rewards can take a number of different forms, including paid time off from work, incentives such as bonuses and shares of stock, or choice of assignment.
Career advancement is another means to connect performance and effort to reward. In a career ladder promotion, an employee is promoted to a higher pay and/or grade level based on whether that individual meets certain performance, time in grade or other criteria.
Employee promotions should result from the consistent application of clear and neutral processes. The consideration and evaluation of applicants for promotion should be based on objective criteria.
Job descriptions guide promotion decisions to the extent that they set forth the minimum qualifications for the position and the essential functions of the job. See Recruiting and Hiring > Job Analysis and Documentation. Job descriptions also form the basis for the content of any posted and/or advertised position vacancy, whether internal or external. Candidates' backgrounds, in turn, are typically assessed or evaluated against the duties and responsibilities of the posted and/or advertised position vacancy.
In addition to using accurate written job descriptions, an organization should implement clear, neutral and objective policies and procedures for considering and evaluating applicants for promotion. Employers should also:
- Use standardized forms, such as official bid, request or application forms;
- Consult and follow relevant written policies and procedures;
- Apply each of these policies and procedures uniformly;
- Use checklists, uniform interview questions and standardized scoring systems to ensure consistency and to reduce the introduction of subjectivity into the process;
- Connect employee effort and performance to reward; and
- Review promotion decisions to ensure fairness and to identify areas of improvement.
Promotion decisions typically take a number of factors into account. Among them are:
- An employer's needs;
- An employee's previous employment record, including the employee's performance on the job;
- An employee's potential for assuming greater responsibility;
- An employee's level of experience; and
- The qualifications and requirements of the position.
Candidates for Promotion
Employers should define clearly who is an applicant for a position, follow the organization's guidelines and standards in defining an applicant, and collect and maintain records of applicants after federal and state laws.
Generally speaking, applicants are those who have successfully completed the application process, as set by the employer.
Promotion procedures sometimes require the online completion of a written, formal application for employment or the submission of specific forms or documents. Certain forms that may be required include the candidate's:
- Most recent job performance evaluation or appraisal form; or
- Undergraduate transcript.
If the candidate fails to fill out the application online or submit the required documentation, that individual is not an applicant for the position. Likewise, if there is a deadline or closing date for the position and the candidate misses the deadline, or does not comply with these procedures before the closing date, that candidate is not an applicant for the position.
Employers can use information regarding applicants for promotions in connection with the preparation and update of any written affirmative action plans.
In the case of a unionized employer, no promotion decision should be made without referring to the applicable collective bargaining agreement (CBA). See Labor Relations > Collective Bargaining Process. The CBA may contain a section pertaining to promotions, the eligibility criteria for certain job classifications and the procedure for selection. Ensure any testing conducted as part of the selection process implements the CBA provisions.
CBAs commonly call for a seniority system to govern or dictate the selection decision. Employers should review the management rights clause (if any) contained in the CBA in conjunction with the section on promotions. Moreover, the promotion may be to a union job, foreclosing consideration of non-bargaining unit members for the type of work in question.
Screening Candidates for Promotion
Employ background screening of candidates to ensure the promotion of an employee who is a cultural fit, and to promote a safe and secure workplace. Frequently, contract employees or temporary workers may seek permanent employment at an organization, thereby triggering a higher level of scrutiny by the employer. In addition, adequate screening for employees in larger organizations seeking a transfer to another site may reduce the likelihood of culture shock upon relocation.
Screening candidates for promotion imposes additional responsibilities, whether the screening involves a criminal background check, a credit check or a drug test.
Background Checks. While some form of screening is recommended, the background investigation may trigger rights and obligations under the Fair Credit Reporting Act (FCRA). See Preemployment Screening and Testing: Federal. If background checks (including credit checks) are performed by a consumer reporting agency, the FCRA will most likely govern, requiring compliance with its consent, disclosure, pre-adverse and adverse action requirements.
Criminal Convictions. Employers must exercise caution if they use criminal conviction or other information (for example, filing for bankruptcy) in selection decisions. If conviction of a crime is a factor, employers should consider whether the offense for which the employee was convicted is job related. It is necessary to give consideration to:
- The nature and gravity of the offense or offenses;
- The nature of the job promotion sought, e.g., whether to a position of trust; and
- The length of time that has passed since the conviction and/or completion of the sentence.
Failing to consider whether an offense is job related can violate Title VII. +42 U.S.C. § 2000e et seq. Use of a conviction record as an automatic bar or disqualification, if that is shown to have an adverse impact on the protected class to which the unsuccessful candidate belongs, may be unlawful under Title VII.
The Equal Employment Opportunity Commission (EEOC) takes the position that an employer's policy or practice of excluding individuals from employment opportunities on the basis of their conviction records has an adverse impact on black and Hispanic individuals in light of statistics showing they are convicted at a rate disproportionately greater than their representation in the population. The EEOC provides two policy statements on its website on the issue of conviction records under Title VII and on the use of statistics in charges involving the exclusion of individuals with conviction records from employment. But see Employer Can Reject Applicant for 40-Year-Old Murder Conviction.
Drug Testing. Additionally, drug testing introduces a whole new set of issues that requires special consideration. Employers who decide to drug test applicants must follow applicable state drug testing laws, administer the testing programs in a nondiscriminatory manner and respect employees' privacy expectations and rights.
In a labor environment, where current bargaining unit employees might be applying for internal promotions, drug and other forms of testing may be subjects that are within the scope of bargaining. If the promotion is to a bargaining unit position, bargaining unit employees passed over for promotion might file grievances under the applicable CBA, leading to internal investigations, grievance arbitration awards and subsequent employer appeals. However, in the case of a preemployment relationship, the National Labor Relations Board has determined that employers need not bargain with labor unions before implementing preemployment testing. See Alternative Dispute Resolution: Federal.
Qualification standards, employment tests or other selection criteria should be used only if they are job related and consistent with business necessity. In other words, employers must use tests that actually test for what they purport to measure. If an employer chooses to use consultants, it must employ reputable providers who have applied standard methodologies and analyses in developing the tests.
The testing of candidates may intersect with an individual's rights to be free from discrimination and retaliation. See Promotion Discrimination; Retaliation; Disparate-Impact Discrimination. Employers should be aware of their obligations to do the following:
- Provide a reasonable accommodation in the administration of tests for candidates with disabilities. Moreover, selection criteria that are related to an essential function of the job may not be used to exclude an individual with a disability if that individual could satisfy the criteria with the provision of a reasonable accommodation.
- Refrain from excluding employees due to a protected characteristic, including race, color, religion, sex (including pregnancy), national origin, disability or age. See Disparate-Impact Discrimination; Testing and Assessments.
If the promotion process requires an interview, the minimum qualifications stated for the position may serve as the basis for selecting who to interview. See Recruiting and Hiring > Interviewing and Selecting Job Candidates. If an applicant does not possess the required licensure or certification, educational degree or level of industry-specific experience, that applicant may not be contacted or scheduled for an interview. Similarly, if the promotion requires the attainment of a particular score on a standardized test that is job related and the applicant failed to achieve the required score, that applicant may not be considered qualified (that is, the applicant is ineligible for interview).
In conducting the interview, managers should employ the same set of questions with each interviewee, using the same interview format and scoring system. For example, if the interview format consists of meeting one on one with a candidate, a panel interview composed of multiple interviewers all at one time would be a deviation from this structure. Such lack of uniformity might be challenged in a lawsuit alleging unlawful failure or refusal to promote. Managers should also ensure that the questions elicit permissible information regarding traits and attributes that are relevant to the job in question.
Using Past Performance Appraisals in Promotion Decisions
A candidate's previous employment record, including his or her performance on the job, provides an excellent tool in measuring future success if promoted to a new position. However, an employer should exercise care before relying on past performance as a consideration or factor in selecting candidates for a promotion interview or for a promotion itself. In order to avoid potential discrimination or retaliation claims, a wise employer would ask whether:
- Any proof exists to suggest the performance ratings or rankings were motivated by possible bias?
- Any documentation exists of a past history of complaints of bias against any of the decision-makers?
- The promotion decision involves any independent decision-makers (that is, someone who is unaware of the history of bias complaints and who has not been the subject of a discrimination complaint)?
Regarding a retaliation complaint, if the employer can show that decision-makers recommending or supporting the decision not to promote did not know about the candidate's protected activity, and all decision-makers were in agreement regarding the decision, a finding that the decision was motivated by bias or a desire to retaliate is less likely.
In addition, 360 evaluations, in which clients, managers and co-workers evaluate employees, could lead to conflicts of interest. See Employee Management > Performance Appraisals. Specifically, if a co-worker is seeking the same promotion as a colleague he or she is evaluating, the co-worker could be tempted to deflate the evaluation. Such conflicts of interest could call into question the fairness of the evaluation process.
Examine Compensation Decisions
Employers should also examine compensation decisions and policies - not only prior to releasing the requisition for the job but also after the promotion decision has been made - in order to identify and correct potential compensation discrimination, in particular with a focus on gender, race and ethnicity-based pay gaps. See Employee Management > EEO - Discrimination.
Elements of compensation that may be assessed or evaluated include:
- Total W-2 earnings;
- Base salary;
- Holiday pay;
- Hourly wage;
- Shift differential;
- Stock options; and
- Any other elements of compensation, e.g., paid leave, health or retirement benefits.
Consideration will need to be given to whether this analysis should be conducted on a nationwide or employer-wide basis, or on an individual establishment basis.
Review Promotion Decisions
Once an employee has been promoted, review the legitimacy of the promotion decision. For instance:
- Do the responses to the interview questions support the stated reason for the selection decision, e.g., the successful candidate was the most or best qualified?
- Does the successful candidate's qualifications and work history support the selection decision?
- Do similar promotions by the decision-maker(s) involved (either in this establishment or employer-wide) lend support to the stated justification for the selection decision, e.g., the successful candidate was the most or best qualified?
- Is the stated reason for the selection decision consistent with or supported by the job description and advertisement for the position?
The reasons for each step or stage in the selection process, from the selection of whom to interview to the selection of whom to promote, should be well documented, and such records should be maintained in accordance with recordkeeping laws and regulations.
Promotion decisions may be challenged as discriminatory under a number of different federal laws. For example:
- Title VII of the Civil Rights Act (Title VII) prohibits discrimination on the basis of race, color, religion, sex (including pregnancy) and national origin;
- The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age (40 or older);
- The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability;
- The Equal Pay Act requires that men and women in the same workplace receive equal pay for equal work; and
- The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination based on genetic information.
An employer may not have separate lines of progression for promotional opportunities for certain employees. Therefore, the following employees comprise a partial list of those who should not be automatically excluded from consideration for promotions:
- Employees with a disability;
- Employees who are perceived as having a disability;
- Employees who require reasonable accommodation; or
- New mothers.
Acme Company recruits volunteers for a project that will provide employees with career advancement skills and opportunities. Necessary files and equipment must be available to or readily at the disposal of all project team members; little, if any, of the work can be performed off-site or circulated electronically to project team members. Moreover, unscheduled team meetings occur frequently so project team members can review new developments and share information. Therefore, employees must work on-site.
Jane volunteers to assist on the project because it will provide her with the skill set and experience for advancement. Jane has a flexible work schedule that enables her to work from home several days a week so she can care for her young daughter.
Jane is not selected for the project because it would be very difficult for her to fully participate on this project. Acme selects other employees who will remain on-site for the duration of the project. Acme is justified in declining Jane's assistance on the project because presence on-site is a business necessity.
An employer may not base promotion decisions on stereotypes and assumptions about a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not assume that new mothers are less committed to their jobs than they were before they had children and, therefore, eliminate them from consideration for promotions.
Jocelyn applies for a promotion to chief financial officer at Acme Limited. Jocelyn meets the qualifications and requirements for the position, and is selected for an interview. Rodney, the selecting official for promotion, interviews Jocelyn and asks a number of questions relating to her responsibilities as a caregiver. Rodney has not similarly asked male candidates whether they have young children or whether their parenting schedule would be able to accommodate the demands of the job. Rodney believes that Jocelyn's caregiver responsibilities would interfere with her ability to work the long hours required in the new job and, therefore, denies her the promotion.
Several weeks later, Acme reposts the position. Acme states that it was not satisfied with the experience level of the applicants in the first round. Jocelyn would likely have a valid claim under Title VII because she meets the qualifications and requirements for the position (as evidenced by her selection to be interviewed for the job) and because Rodney rejected her because of sex-based stereotypes.
An employer may not assume that certain employees (for example, mothers of young children or single parents) will not be interested in positions that require significant travel or working long or unusual hours. The EEOC provides guidance on its website on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities; Employer Best Practices for Workers With Caregiving Responsibilities; and Pregnancy Discrimination and Related Issues.
Acme Company posts a job opening for an HR director. The position requires frequent travel to other company locations. In addition, it requires working long or odd hours, e.g., to train plant employees working evening, overnight and weekend shifts. Heather, a senior HR partner for an Acme business unit, and Joe, an HR generalist, apply for the position. The HR director position would be an internal promotion for both.
Both Heather and Joe have the required certification and extensive HR experience necessary for the HR director job. However, Heather is the single parent of a recently adopted child who has adjustment issues common to international adoptions. Heather requests to work from home a couple of days per week to bond with her adopted child and help him adjust to the change. Joe is able to work on-site full time.
Acme selects Heather for the position based on her experience level and longer contribution to the organization, noting that she can provide training on-site to employees based or headquartered at other facilities through live, interactive, web-based programs on the days that she is required to work long or odd hours and not able to travel. In this situation, Acme evaluated both internal candidates for promotion and made the selection decision based on specific job related criteria.
Same facts as above, except Acme selects Joe for the position. Acme states that while it supports telecommuting, such an arrangement does not lend itself as well to one of the requirements of the HR director position, and that travel and training in the form of personal face-to-face meetings leads to more effective outcomes. Acme's decision in this situation may not be justified: it should not have based its promotion selection decision on Heather's telecommuting schedule if business necessity does not require the promoted employee's on-site presence. Moreover, the decision may have been unlawfully based on Heather's caregiver responsibilities, and her presence at home could potentially qualify as leave under the Family and Medical Leave Act (FMLA).
If the motivating factor for the promotion decision is based on race, sex or another protected characteristic, an employer will have violated Title VII even if the promotion decision would have been the same based on other, nondiscriminating factors.
Acme Company seeks to hire a communications director. This position would be considered a promotion from the position of marketing assistant, the internal position held by Claudia and Ken. Both Ken and Claudia meet the requirements for the position and have as much experience as some other individuals recently hired as communications director, but Ken has more experience than Claudia.
Claudia and Ken interview for the communications director job. After Claudia's interview, the hiring manager of the communications department expresses concern about hiring a young married woman. The hiring manager believes that Claudia might have children, rendering her incapable of meeting or satisfying the demands of the promotion, and resulting in employee turnover. Although Ken and Claudia have similar qualifications, Ken has greater experience, and the hiring manager has consistently used relevant experience as the tiebreaker in rendering promotion decisions. Ken is hired as communications director.
In these circumstances, Acme would have hired Ken based on his greater experience, absent the discriminatory motive. However, Acme violated Title VII because sex was a motivating factor in the decision not to hire Claudia.
Under the ADEA, discrimination can occur when the unsuccessful and successful candidates are both over 40 and pretext is shown to exist.
Nancy, a mid-level manager at Acme Manufacturing, applies for a promotion to a newly created upper-level management position. Nancy is in her forties. Acme rejects Nancy because she did not complete the firm's executive training program, a prerequisite for the promotion sought. Nancy has not been chosen for the firm's executive training program because Acme asserts that the candidates who were selected have better performance appraisals or more managerial experience and because she lacks the stuff of which "executive material" is made.
An investigation reveals that Nancy has better performance appraisals and more managerial experience than several other candidates. In addition, according to Acme's written selection policy, Nancy is better qualified than some of those selected for the executive training program. While Acme selected workers both over and under 40 years of age for the program, the only women selected were under the age of 40 and all selected males over 40 were younger than Nancy. Acme may be held liable under the ADEA.
Failing to promote an employee because the employee has engaged in a protected activity constitutes retaliation and is illegal under several federal laws.
Examples of protected activity include the following:
- Filing a wage complaint;
- Filing a discrimination charge;
- Taking leave;
- Participating in an employment discrimination investigation;
- Testifying in a sexual harassment lawsuit against an employer; and
- Alerting regulators of deceptive trade practices in the workplace.
Employee Management > Discipline > Whistleblower Protections;
SOX Whistleblower Protections Do Not Extend to Employees Disclosing Information to the Media.
Employers need not solely base their promotion decisions on unlawful discriminatory reasons for them to be liable for discrimination. Even if employers do not intentionally treat employees differently, their policies or procedures may have an unintentional disparate impact on certain protected classes of employees.
Employers are prohibited from using neutral employment policies and practices that have a disproportionately negative effect on employees based on race, color, religion, sex (including pregnancy), national origin or disability, if the policies or practices at issue are not job related and necessary to the operation of the business. See Employee Management > EEO - Discrimination.
An employer also may not use neutral employment policies and practices that have a disproportionately negative impact on employees aged over 40, if the policies or practices at issue are not based on a reasonable factor other than age. For example, requiring a physical strength test of all applicants that is considerably more difficult than the requirements of the job itself may disproportionately exclude older workers. See Preemployment Screening and Testing: Federal and EEOC Employment Tests and Selection Procedures.
Policies and practices that have a disparate impact can result in class action complaints alleging a pattern and practice of failure to promote class members and denial of promotional opportunities to management positions. For example, female employees who are not promoted to management positions to the same extent as male employees may file suit as a group against an employer in order to combat institutionalized discrimination.
Testing and Assessments
Promotion tests, qualification standards or other promotion selection criteria may be attacked on disparate-impact discrimination grounds if they exclude a class of employees based on a protected characteristic. Such tests, standards and criteria must be job related for the position in question and consistent with business necessity. Fear of Discrimination Lawsuit by One Group Cannot Justify Discriminating Against Others. For example, selection criteria based on an individual's uncorrected vision may not be used unless shown to be job related for the position in question and consistent with business necessity.
Monica, a black female, and Bryan, a white male, are competing for a promotion to become Acme Clothing's sales director. The interview questions consist of three standardized questions designed to assess the candidates' backgrounds against the duties and responsibilities of the job. The question accounting for the greatest portion of the score - 45 percent - focuses on the generation of revenue. A proven track record of growing sales pipelines and closing actual deals is consistent with and a legitimate expectation for this type of job.
Bryan is selected for the position because he received the highest overall average score and received the highest rating on revenue-generating ability. Information from Bryan's interview responses and resume show that he had previously doubled his line of business, making his territory the source of more than half of the revenue for his prior employer.
Based on the foregoing, it is unlikely that failing to promote Monica was motivated by racial bias. Moreover, Monica had not lodged any race-based complaints to suggest that the decision here was motivated by a possible desire to retaliate.
Note that if an applicant with a disability needs an accommodation in order to apply for the promotion, the employer is required to provide the accommodation provided it does not cause the employer significant difficulty or expense.
Generally speaking, the remedies available for discriminatory or retaliatory promotion decisions include:
- Back pay;
- Injunctive relief;
- Monetary damages (including compensatory and punitive damages); and
- Attorney fees and costs.
Employers may calculate their potential exposure in discrimination cases by reviewing Title VII's cap on monetary damages, which is based on the number of employees that were employed during the calendar year in which the alleged discrimination took place. +42 U.S.C.S. § 1981a (b)(3). The cap under Title VII on compensatory and punitive damages also applies to actions under GINA.
Special Considerations for Government Contractors
Government contractors must comply with regulations that apply to contracts with federal agencies. For example, a federal agency's regulations may require that all employees of a contractor possess a security clearance or be able to obtain a security clearance to work on the government contract.
An employer may base a selection decision on a national security requirement, other than citizenship, imposed by statute or executive order. However, any requirement claimed to be imposed in the interest of national security must be required for promotion to the position in question (e.g.,if a company requires all employees to live in the United States, but the applicable government contract does not so require, the company may be discriminating on the basis of national origin). The EEOC provides guidance on the Use of Title VII's National Security Exception.
Samuel, a naturalized US citizen, applies for a promotion to a position with Acme Robotics, which primarily does government contract work. Acme's government contracts require that personnel assigned to work on some of its projects, including work for the position Samuel seeks, have security clearances. Acme has to fill the position immediately. Samuel does not have a security clearance at the time of his application for the position, and the process for obtaining the necessary security clearance would take six months to a year. Acme does not promote Samuel. Acme acted in good faith and did not violate Title VII by failing to promote Samuel because it is prohibited from employing anyone who does not have the required security clearance.
Promotions to Management Positions
Promotions to management positions involve additional considerations. New managers need to comply with wage and hour regulations, conduct effective performance appraisals, enforce work rules and abide by nondiscrimination laws, among other responsibilities. Note, though, supervisors are typically excluded from petitioned-for labor units. See Labor Relations > Collective Bargaining Process.
For employees to tap into their full potential, training should be provided to all workers (i.e., employees, supervisors and executives) to provide them with the information and skills necessary to perform their jobs well. See Training and Development > Recommended Training for All Employees. Employees should also be provided with equal access to workplace networks to facilitate the development of professional relationships and the exchange of ideas and information. Employers should implement career development policies and encourage top performers to consider promotion opportunities. See Employee Management > Employee Retention.
Once promotion to a management position has been made, new managers should be made aware of the availability of training regarding their new responsibilities and their role as supervisors - to mete out employee discipline and minimize the employer's potential liability. New supervisors should familiarize themselves with their employer's internal policies and procedures, apply them consistently and follow the organization's code of ethics.
If the promotion to a supervisory position is with a publicly-traded company, managers may need specific training by virtue of their new managerial position in a regulated industry. See Training and Development > Recommended Training for All Employees. This may include training regarding New York Stock Exchange (NYSE) requirements, Sarbanes-Oxley Act of 2002 (SOX) provisions and whistleblower protections, among others. In addition, the promoted supervisor might require advice, counseling or support not only from HR but also an internal compliance division. Depending on the promotion, a new manager may be a fiduciary in reference to a particular statute such that additional training may be required or highly recommended.
Best Practices in Promotions
The following information is a roundup of advice for making the best promotion decisions.
- Develop specific, job related criteria for each position that reflect the duties, functions and competencies of the position, and ensure these standards are consistently applied when choosing among applicants for promotion.
- Review employment policies and practices - particularly those related to job vacancies, applications, hiring, promotion and pay - and follow them to avert claims of breach of contract or similar types of claims in states where such causes of action are recognized. See Recruiting and Hiring > Employer Liability for Recruitment and Hiring Practices and Investigations and Litigation > Litigation.
- Focus on work experience and accomplishment of workers who have taken protected leaves and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service when reviewing and comparing employees' work histories for promotional purposes.
- In a labor environment, review applicable collective bargaining agreement provisions - particularly those related to job vacancies, the application of a bona fide (nondiscriminatory) seniority system, applications, promotions, and pay - and follow them to avoid a possible unfair labor practice charge alleging the terms of the CBA were violated. See Labor Relations > Alternative Dispute Resolution.
- Develop the potential of employees, supervisors and executives for assuming increased responsibility without regard to any protected category. Ensure that employees are given equal opportunity to participate in complex or high-profile work assignments that will enhance their skills and experience and help them ascend to upper-level positions.
- Make sure promotional opportunities are communicated to all eligible employees, and do not assume disinterest or the absence of particular skills or relevant experience on the part of some employees.
- If drug testing is part of the selection process, ensure any testing is conducted according to a drug testing policy that complies with applicable laws, including any mandated procedures. See Testing and Assessments and Preemployment Screening and Testing: Federal.
- Employ an individualized job related analysis in making promotion decisions and refrain from basing such decisions on automatic disqualification standards.
- Focus on the candidate's qualifications for the promotion in question. Refrain from asking questions about the candidate's background that have no bearing on the job during the interview.
- Ensure that selection decisions are well-documented. To ensure transparency and prevent misunderstandings, clearly state the reason for promotion decisions (to the extent possible). Retain records relevant to decisions about hiring, promotion, performance, pay, and other employment decisions for the duration of time required by law.
Alternatives to Promotion
If promotion opportunities within an organization are lacking due to the size of the employer or due to a recessive economy, employers should consider alternative rewards in order to help retain employees.
Such alternatives include:
- Additional paid time off;
- Flexible workplace policies, e.g., telecommuting;
- Paid educational opportunities for professional advancement;
- Company stock; and
- Other non-cash awards.
Yet another way in which an employer may reward work in a recessive economy is in the form of an "in name only" promotion, or a transfer or change in employment status that leads later to promotions to higher paying positions. In the case of an "in name only" promotion, an employer should be careful not to create a binding promise of higher pay and to dispel the notion, if any, of different or lower pay for equal work. In addition, inflating an employee's title when the employee does not possess the requisite qualifications nor has been adequately trained for the position may lead to unforeseen employer liabilities, such as increased exposure to negligent retention claims.
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