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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 16079
Experience:  Employment/Labor Law Litigation
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Hello, My name is XXXXX XXXXX I am employed with a brokerage

Resolved Question:

Hello,

My name is XXXXX XXXXX I am employed with a brokerage firm going on 7 years now. I recently applied for an internal position within the company and was told I did not get it based on "lack of experience". However, several months after I was informed of not getting the job, they hire an external candidate. Just recently I was asked if I could "tudor" the new employee to pass a regulatory exam, one of course which I already have. When I applied for the position, one of the requirements was to have this license, not "be willing to obtain in "x"number of days". Do I have a case against my employer? If so, what would be the basis of my case (i.e. unethical hiring practices)?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines.

Do you have any basis to believe that you weren't selected for the position based on your race, religion, gender, age, disability or FMLA use?
Customer: replied 1 year ago.

No, I do not. However, can they hire a candidate that didn't meet the requirements for the position (securities license), when I met the qualifications?

Expert:  Allen M., Esq. replied 1 year ago.
Yes, they legally can.

When they claim that they aren't promoting you for one reason, and then that reason doesn't actually turn out to be true, all that does is suggest that an illegal motivation prompted them to not promote you.

So, we have to then identify the illegal motivation. If they had no illegal motivation, but perhaps just didn't like you personally, while that is a terrible reason not to promote you, that's not illegal.

So, the fact is not by itself illegal. An employer isn't legally required to be honest about why they aren't promoting someone. It is logically possible, in this case, that hiring someone with less experience cost them less money than hiring you, particularly if they can get you to train them. Then they get the benefit of your experience at the cost of the other person.

I won't say that's fair or a good business move, but unfortunately, it isn't illegal either.

So, unless you can point to some illegal motivation for why they are deciding not to promote you, there isn't any illegal action here that you can sue them for.
Customer: replied 1 year ago.

I never mentioned a promotion, but thanks for the very general information provided.

Expert:  Allen M., Esq. replied 1 year ago.

You stated that you applied for an internal position within your company. I assumed that it was a promotion, because most people don't apply for a position unless it will be a better fit for them or provide better benefits, income, etc. Regardless, that assumption, if incorrect, has no bearing on the legal outcome of the issue.

The information that I have provided is general because the facts that you've given here are general and also because the law in this area is very general. Employers have wide latitude in what they can do, provided that they avoid making decisions using specific illegal factors.

Did you have some more specific facts for me to consider?

Customer: replied 1 year ago.

As i stated previously, one of the requirements for the position is to have a federal securities license. One, in which the new hire does not currently have. One in which I was asked to "teach" the new hire how to pass this rigorous exam. Well, if i was told that am not qualified for the job, how can I be qualified to teach the required licensing course?

Expert:  Allen M., Esq. replied 1 year ago.
I certainly understand your point. It doesn't logically make sense that you aren't qualified for a position, but you are qualified to teach someone else to be qualified for the position.

Regrettably, employment law does not require an employer to be logical, fair or reasonable. It simply requires them to not make decision based on illegal factors.

When we see something illogical like this, we have to look at it and see if it suggests an illegal motivation, such as race, religion, gender, age, disability or FMLA use discrimination. If you had recently used FMLA, for instance, and you had these same facts, I would argue that that is clear evidence of FMLA use retaliation.

But again, there is no legal claim based solely on an employer being illogical, unreasonable or unfair. There must be an illegal motivation. I sue employers for a living. If there was a claim here, I would have every motivation to tell you so, but there just is not a claim based solely on the illogical actions of the employer here.
Customer: replied 1 year ago.

Thanks again, obviously the law is narrow in scope.

Expert:  Allen M., Esq. replied 1 year ago.

I will agree with you there. The law is narrow in scope. The Supreme Court dictated such in one of its decisions concerning the definition of the term "hostile work environment."

 

The Supreme Court stated that our employment laws are not meant to be a civility code, but rather, are only intended to address specific and narrow issues of law, namely, the issue of discrimination made illegal by statute.

 

I do wish that I could tell you differently here, but it would not help you for me to tell you that you have a claim when you do not.

I'm simply respecting you enough to be honest with you.

Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 16079
Experience: Employment/Labor Law Litigation
Allen M., Esq. and 4 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you again.
Expert:  Allen M., Esq. replied 1 year ago.
No problem at all.

Take care.

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Allen M., Esq.
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Employment/Labor Law Litigation