Ask The Lawyer

By Debra Roth

Q & A Session – Prohibited Personnel Practice?

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I work for a military organization where the leadership routinely allows for and then creates positions for military service members who are already in the organization who are getting ready to separate/retire and then places them into the position after they separate from the military. To me, it’s basically a preselection for the position. Is this legal? Can they create and then fill positions with someone already in mind for the job? If it is not legal, I’d like to blow the whistle. Who could I blow the whistle to?

A:

Pre-selection is not necessarily illegal. It is only a prohibited personnel practice (and therefore illegal) when the pre-selectee is selected without regard to merit and the “competition” is really a sham. In other words, management may think the pre-selected candidate would be good, but if they give full and fair consideration to the others, it may not be illegal. I have heard of numerous cases of employees with a supposed lock on a position who were not, in the end, selected.

You say they go through the process so it may be hard to prove the illegality of the pre-selection. But an unwise email may just provide the evidence to show that other applicants never had a chance.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

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