Dear Berkshire: How do I Determine if a Promotion is Competitive or Noncompetitive?

The following content was developed as part of our new blog column, “Dear Berkshire.” Instead of trying to anticipate the challenges you're facing at work, we’re going straight to the source. Every several weeks, one of our expert consultants will answer a specific question about compliance, regulatory changes, and affirmative action -- submitted by HR professionals like you!

Q: Can you provide information on how to determine if a promotion is competitive or noncompetitive? Is it required that a competitive promotion be posted internally or externally? If an executive level role is not posted, is it considered a non-competitive promotion?

A: For this blog, we are answering a compound question from an online subscriber about the finer points of competitive vs. noncompetitive promotions. Specifically, we were asked: “Can you provide information on how to determine if a promotion is competitive or noncompetitive? Is it required that a competitive promotion be posted internally or externally? If an executive level role is not posted, is it considered a non-competitive promotion?” For ease of understanding, we will break the question apart and provide responses to each component of the question.

Can you provide information on how to determine if a promotion is competitive or noncompetitive?

The Office of Federal Contract Compliance Programs (OFCCP) defines a promotion in the Technical Assistance Guide for Supply and Service Contractors. The specific language in the appendix states: “Any personnel action resulting in, for example, the movement to a position affording higher pay, greater rank, change in job title, or increase in job grade; an increase in pay, requiring greater skill or responsibility; or the opportunity to attain such. A promotion may be either competitive or noncompetitive.” OFCCP does not explicitly define competitive and noncompetitive promotions. However, competitive promotions are generally defined as a promotion that requires the employee to apply for an open position and the employee is compared against a pool of applicants and then they are selected from that pool. Then, noncompetitive promotions are generally defined as a promotion that does not require the employee to apply for an open position and no other applicants are considered, the movement is more of an “in-line” or “step” promotion.

Is it required that a competitive promotion be posted internally or externally?

Currently, the agency is quiet on the posting requirements specific to competitive promotions. While there is no stated requirement to post internal competitive promotions, it is best practice to do so and other OFCCP guidance supports that. Here is a link to their old promotions focused reviews: https://www.dol.gov/agencies/ofccp/focused-reviews/promotions/best-practices This information is general best practices and makes sense as to how the agency wants contractors to be thinking about promotions.

If an executive level role is not posted, is it considered a non-competitive promotion?

For the last part of our question, we will say that the answer is “it depends.” Remember - to be considered a non-competitive promotion, the position in question would not have been made available to anyone but the employee who was promoted. Therefore, if the position was worked by a search firm or an internal committee AND more than one employee was vetted for or personally expressed interest in the position, a pool exists and should be considered “competitive.” In the reporting, it may appear to be a 1:1 hire because of the internet applicant rule but a pool exists, nonetheless. To be clear, when there is a pool, non-posting of an executive role does not automatically mean it should be considered a non-competitive promotion process.

Thank you to the person who submitted this very interesting and important compound question about promotions. We hope that the newfound clarity on competitive versus non-competitive promotions enhances your affirmative action programs in the future.

Next time you get stuck while working on your affirmative action plan(s) -- or maybe you get a question from a colleague that you’re not sure how to answer – remember that expert advice is just a couple of clicks away! 

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