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Passed Over

December 13, 2012

I have been working for a company for about two years. The company recently acquired another company. There were many layoffs as the companies merged. I was moved over to another department. A director-level position was created in this new department and someone was given the promotion. The rest of us never knew about the position and certainly didn't have a chance to apply for it. The person receiving the promotion has a lot less experience and qualifications for the job. When I confronted his boss about this he minimized the importance of the role. Is it legal to promote someone into a new position without allowing others to apply, especially if the person who was promoted is less qualified?

— Pamela, Massachusetts

Answer:

When you have some time for a bit of light entertainment — here’s art imitating life. I know it’s not funny in real life, but sometimes it helps to step back and laugh at the absurd.

A lot of workplace issues present as much of an organizing question as they do a legal one. Other than having to comply with anti-discrimination laws, private employers are generally free to promote and transfer employees as they choose, regardless of whether they are being fair to their employees. So if there isn’t a discrimination issue (which can be difficult to prove), you could be left to the whim and mercy of your employer. Unless you organize …

Any limitations on the employer’s decision making would come from contracts, not from laws. Many collective bargaining agreements contain seniority rights that require the employer to respect seniority when laying off, transferring, or promoting employees. So, if you don’t have a union at your workplace, this is one of probably many reasons that you and your co-workers may decide to organize one.