Can an employee file a complaint if an outside person is hired for a position that they did not know was available?

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Can an employee file a complaint if an outside person is hired for a position that they did not know was available?

Looking at hiring a “friend” for an assistant job instead of allowing existing staff to apply.

Asked on August 20, 2011 California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

It is perfectly permissible for an employer to give a preference of this nature. Unless that is there is an employment contract or there is a union agreement providing otherwise, or this action violates existing company policy.

The fact is that in an "at Will" employment relationship, an employee can choose to work or continue to work for an employer, in turn as a general rule an employer can hire or fire as it deems necessary, as well as choose working terms and conditions as it sees fit.

That having been said, no action of an employer can be based on actionable discrimination. Workplace discrimination occurs if someone who is in a "protected class" is given less favorable treatment because of their membership in that class.  The following are characteristics considered "protected classes" for which a person cannot be discriminated against: color, race, religion, national origin, sex,  age (over 40), disability, and in some jurisdictions, sexual orientation, gender identity, and "familial status" (e.g. married vs unmarried; parent vs childless). So, for example, if you weren't hired for the position because of you were a Muslim that would actionable discrimination; if you were not hired because a friend was given preference, that does not constitute legal discrimination. 


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