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No formal application? No failure-to-hire suit

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in Hiring,Human Resources

Employees sometimes think telling their boss they’re eager to advance is the same as applying for a promotion. It’s not. They will have a hard time winning a failure-to-hire lawsuit if the employer has a formal application process.

Cement that protection by consistently posting internal job opportunities and telling employees exactly what they need to do to apply.

Recent case: Andre worked for the New York City Department of Sanitation. He sued, complaining he failed to receive a promotion in which he had apparently expressed some interest.

But it turned out he had never actually applied for any promotions. In fact, very few were available. In court, Andre conceded that many co-workers remained in the same jobs for more than 30 years because few promotion opportunities ever came along.

The court dismissed his lawsuit, reasoning that at a minimum one must apply for a position to claim failure to hire and this was not a situation in which workers routinely received promotions. (Antrobus v. New York City Department of Sanitation, 2nd Cir., 2017)

Advice: Follow these best practices for making promotion opportunities available for current employees. First, be sure to communicate a clear policy setting out any preference for hiring current employees. Second, let employees know how to find posted openings. If possible, send postings to all current employees via email. Make sure employees know exactly how to apply for open positions.

Clarify that expressing interest is not enough; a formal application is required for consideration. Then track all applications.

Finally, train all supervisors how to respond to informal requests for promotions or other expressions of interest in training that could lead to promotions. Supervisors should educate subordinates on the promotion process.

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