If a tenure-track position has been advertised at the Assistant Professor level, is it legal to hire someone in it at the Associate level?

Question

I am interested in a position that is advertised at the Assistant level but I already have been promoted to Associate at the same university but in a different department. In theory, if I were chosen, is it legal for the University to hire me in the new position at my current Associate rank even though the position was listed at the Assistant level?

Answer 1

The specific wording of the posting, combined with specific HR policies, are important. Perusing one US university's hiring page (name withheld since it is not important), I found a number of variations:

XXX invites applicants for an Assistant Professor position... Seasoned untenured professors will be considered.

OK, pretty clear that a tenured professor would not fit the posting.

XXX is seeking to fill a tenure-track faculty position... This is a tenure track position at a rank fitting with the candidate’s record of accomplishments.

Pretty much anything goes here.

These new positions are open-rank, long-term, full-time, on-campus, non-tenure-track positions that can be focused on teaching, research, or a combination of both.

Not tenure track, but you could apply if you wanted to.

XXX invites applications for tenured or tenure‐track faculty position in YYY...

Anything goes.

The tenure-track position will be hired at the rank of full professor...

Unlikely to hire a postdoc into a full professor position, but it does not rule out a current Associate professor from applying.

Some have breadth stated explicitly, some don't. However, one would perhaps have to dig deeper into the HR policies of the institution to see what, if anything, they allow to be done, including altering the posting in situ, reposting at a different job level for an attractive candidate, etc.

Answer 2

I'm going to focus on the US, I think other countries are likely to be rather different. The US has relatively few rules around hiring and firing. There's no law requiring positions to be advertised! Universities can and do routinely hire people outside of the standard search process, and can and do routinely hire at levels or areas that do not match the advertisement. A key word here is "target of opportunity," and I have been offered a job as a target of opportunity and have been involved in trying to hire people as targets of opportunity.

Nonetheless, there's real constraints on this happening. Legally the main constraint is that it can be difficult to get a work visa for someone who was not hired through a regular search, so if you are not a permanent resident there may be complications. A secondary legal issue is that although you're not required to be fair in hiring, there are certain specific ways of being unfair which are banned ("protected categories" such as race, religion, or being over-40).

The main constraint isn't legal, but rather administrative. Getting approval to hire for a position involves a dean and a provost, and hiring outside the approved position requires going back through the chain of command again. This means there's a lot more veto points where people might not approve a hire outside of the search parameters.

Answer 3

It is my impression that, in the U.S., whatever position is filled needs to have been advertised: to fill a position at a different level than advertised would have misled/deceived potential candidates.

But the enforcement mechanism is weak, so far as I can tell, so that if the administration has ok'd such a hire (for whatever reason) there's probably no other actor in the scene who can effectively object or complain.

One extreme case where no one would object, if you're already at level X in dept A, and change to level X in dept B in the same university, is if your line_item is transferred from dept A to dept B. But I'd suspect that dept A would not want to give up a line item in their budget.

The most up-and-up approach here would be to suggest/request of dept B that they modify their advertised position (with sufficient lead time to be fair). An obstacle might be that their Dean does not necessarily want to "give them" another already-tenured slot.