Q10: Our “competitive” promotions are often because internal candidates are applying for a job opening and competing with external candidates. Would you still consider this a “competitive promotion”?
A10: To answer your specific question, you have not given us enough facts to answer this age-old conundrum question about which contractors have been begging OFCCP for over two decades to answer via Rulemaking. The situation you describe is certainly a “competitive” event since the selection at issue positions an incumbent employee to compete with outside Applicants for hire. It is certainly not a “promotion in place” with no other candidates being considered for the “promotion.” Whether one characterizes the situation you describe as a “promotion” or a “hiring” transaction is the conundrum since it is both, depending upon the point of view of the incumbent or that of the outside Applicants: it is a “promotion” PERHAPS (this is where we need more information, see below) from the perspective of the incumbent, but it is a hiring decision from the perspective of the outside applicants.
But we need more facts from you to determine whether it is indeed a “promotion” at all, as the law defines that term. Depending on the facts, it could be a “transfer” (no increase in pay, benefits, or opportunity for upward mobility) or it could be, perhaps, a “demotion” (the employee might be looking for reduced responsibilities). But if you were to conclude that the transaction is not either a transfer or a demotion, I would conclude it is a “competitive promotion” AS TO OTHER INCUMBENT EMPLOYEES WHO MAY HAVE ALSO APPLIED. I would not, however, include those “promotion decisions” in the pool of data to analyze with the outside applicants in a “hires” analysis.
For those outside applicants, I must undertake “hiring” analyses. So, among the many options that also might be correct, I have decided (years ago) that the labels for “hires” and “promotions” which occur simultaneously in the same employment transaction are not relevant to what discrimination analyses seek to ensure: lawful treatment of applicants and employees. So, I keep one pool (of the incumbents seeking promotion or demotion, or transfer and include them with the external Applicants for Hire, and then I call it a “Selection Analysis,” rather than a “Promotion Analysis” or a Hiring Analysis.” In that way, I can test whether the company selected employees on a non-discriminatory basis, as it occurred in fact with candidates coming to the job vacancy from various positions within and outside the selecting company.
I am not sure about this conclusion, though, since there is no case law I can find on the point and there are no regulations governing the issue. So, what do you do in an audit? Since it is unclear whether the architecture of any “Selection Analysis” is an appropriate resolution of the “incumbent”/“outside applicant” conundrum, I have always found that transparency is the best way forward: tell OFCCP that there is a conundrum, and this is how you have resolved it. I recommend you lay out your math in detail for OFCCP to see and accept, or as to which to take umbrage. Now, let me tell you why your resolution of the conundrum will win, regardless of what OFCCP determines.
A “competitive promotion” is not a legal term. It is an HR term with a vacuous and uncertain definition that varies from one company to the next. Why OFCCP throws down undefined terms willy-nilly is a mystery to me, particularly as to discrimination law issues. There is a lot potentially at stake. Again, you are thrice saved and OFCCP has given you much liberty to decide how to respond to its request (not demand) that you supply “competitive promotion” information. Contractors should feel liberated for three reasons:
- OFCCP makes it elective with the contractor whether to parse and supply this information at all to OFCCP;
- OFCCP has not defined its terms, thus leaving it to you to supply your own definition; and
- Because OFCCP has not supplied a definition for the term “competitive” (or “noncompetitive”) “promotion” at all, let alone in the proper way through Administrative Procedure Act Rulemaking, OFCCP cannot object to any definition you use to parse promotions. See above Answer # A 6 c).