Nepotism policy

ks1

Like some employers, we have a policy that prohibits the hiring of someone closely related to an employee (i.e., spouse, sibling). Our policy states employees who are "contemplating marriage" are required to disclose this to their directors, and it is evaluated with a recommendation to executive management. Some of the criteria in the policy are that employees who marry may not work in the same division, may not be in a supervisory/subordinate relationship, and neither may work in a "sensitive area" of the company, defined as including HR, security, internal audit,legal, directors.
This policy has been used to bar hiring of a related individual, but in my memory the "marriage while employed" has only come up in two cases, in which the employment of both persons was allowed to continue(they did not fit into any of the exceptions above). Now two employees,both of whom work in a "sensitive" division (although different divisions),want to marry. Under the policy, they clearly would not beallowed to both remain in their jobs. But now (of course now) some of the managers involved are questioning the policy and pointing out that it is more restrictive than others they have seen. The employees in question are making noises about taking legal action if this is not approved, pointing to things like "freedom of association" and the fact that two other employees, both gay men, are "married" and work in the same division (we
were aware of this, but our nepotism policy doesn't include a gay marriage as a degree of relationship. In addition, these two employees have been dating (and perhaps living together) for some time, so their supervisor points out that if there was any risk from them both being in "sensitive" jobs, it is there whether marriage or not (again, our policy does not address unless there is a blood or marriage relationship). We are very careful to say that we aren't approving or disapproving the marriage itself - just whether there can be continued employment of both if they choose to marry.
I know some states prohibit discrimination based on "marital status," but I don't think Texas is one of them. I am wondering if these employees could challenge the policy on another basis, such as that the "sensitive area" restriction is too broad. Any thoughts are appreciated. Anyone else have a policy that includes a restriction of this type?

Pork

I state as before on issues on this forum. Actions speak louder than words. Having a policy and not enforcing the policy to the letter of the policy means "you do not have a policy at all". If a company is going to have "exceptions", "strings tied" and "interpretations rendered by one manager and not the whole body" then the policy becomes null and void of substance.

The United Nations, the security council, and we the american people are facing this issue with IRAQ. Why have a sanction "policy" that is viewed by many (majority)of the nations and especially "IRAQ" as only words and not ment to be complied by those that are sanctioned? The same thing is true of your policy! If no one is going to follow it or enforce it, consistently, throw it out or otherwise, your organization has no strength and it becomes ineffective in its purpose such as the UN today!!! "Wishy/washy" policy gives room for the "attorneys" who live on these issues, plenty of room to set litigation action into motion. Good luck, Pork

Gillian

We don't have this sort of policy, but they are quite common. An attorney will have to weigh in on the possibility of lawsuits based on freedom of association or keeping someone from making a living or other grounds. From an organization perspective you need to evaluate whether or not your policy is what you want or is too strict. The supervisors are correct in that other organizations have looser policies. On the other hand, there are companies with policies that are stricter, so I don't think this is a reason for changing your policy. They don't want to lose one or the other, or maybe both of the individuals. What does argue that it may be too strict is the fact that you have a gay relationship which would otherwise violate the policy and the fact that the two individuals in question have lived together for awhile. If these relationships haven't created a problem, it is hard to make a case that marriage will mean that the individuals will change and become dishonest, or whatever the reason is that the policy exists. In addition, if you force one to leave, transfer or whatever the outcome would be, you should evaluate what effect that will have on the other party and on other people who observe what happens. While this event may cause you to rethink policy, think long term - there will be other instances so is this a policy you want to stick with over the long term, or no.

Don D

I will come down on the other side of Gillian's review of your policy. I assume it was carefully thought out and chosen and put in place by management for their own good reasons, so I have no reason to critique its universal application or lecture you on the values of legal marriages or non-marriages vs. live in arrangements. I have seen much, much more strict policies and I have seen couples head across the state line to get married just to beat the inception date of such a policy. I think you enforce your policy based on its merits and not listen to the rumblings from the troops about their perceptions of your policies. Workplaces aren't democracies and policies exist for reasons. I do like very much the idea of your prohibition relating to HR or IS or other sensitive areas. Unless Theresa can turn us around, I don't see legal complications, in Texas.

jhagan

Since you are in Texas, you can take guidance from a decision on this issue from the Texas Supreme Court.

In a case against Goodyear, a brother and his sister worked together for 17 years and the brother had even managed the sister, in violation of the company's anti-nepotism rule. When the rule was enforced, the sister was fired, and she sued for wrongful termination. She claimed that Goodyear's actions over the last 17 years -- keeping her employed for so long in violation of the anti-nepotism rule, even though management was aware that she and her supervisor were brother and sister -- modified its anti-nepotism claim to the extent that she could not be discharged for violating it.

The employee won her case. The Supreme Court found that this 17-year practice carved out an exception to a company policy that had been in place since 1947!

The moral of the story: Polices can become unenforceable if the are ignored, or practiced unevenly. In your situation, what you may want to do is to review and amend your anti-nepotism policy: how are gay marriages, common-law marriages going to be handled? Do you gut the "no-marriage" policy and replace it with a "no-dating" clause so that you don't have to deal with the marriage question?

For the situation at hand, you can examine how well the company's past practices have mirrored your anti-nepotism policy. This normally reveals a "blended" policy that some HR managers follow until their written policy can be updated.

I hope this helps! Good luck!

John Hagan
Gibson, McClure, Wallace & Daniels, L.L.P.
Dallas, Texas
[email]jhagan@gmwdlaw.com[/email]
214-891-8068

ks1

I appreciate the information and the Goodyear case. I think we may need to amend our policy, but am concerned about how we cover things like gay "marriage" or dating without becoming police of our employees on their private time.

jhagan

To avoid policing, you may want to change your policy by placing the burden on the employee to come forward and report the dating or marriage. Then, in the event that you become aware of dating or marriage that was not reported by the employees in question, you have two violations supporting discipline ((1)dating/marriage and (2) failure to report dating/marriage)as leverage to convince one employee to transfer to another department.

Conversely, if dating or marriage occurs but you are never made aware of it, then you protect the fact that you did not respond to it. The defense would be how can you respond to something that you were neither aware of nor required to police?

John Hagan

Theresa Gegen TX

Thanks John.

As for the issue about whether Texas prohibits such policies, it does not. But when you apply it inconsistantly, as a previous respondant stated, the policy will be subject to legal attack. Walmart got hit bit in the 5th circuit when it applied this type of policy to a couple who were in an interracial marriage (race discrimination case). I am sure these two employees can come up with some protected classification that applies to them and does not apply to the other married employees.

But I also know of atleast one really big company that has this type of policy and enforces it consitantly and constantly.

It seems that the policy your company has was developed in good faith and probably for what seemed like good business reasons. But now, since none of the managment want to follow the policy, I would really question it. I would not let a policy run my business. It may be that revising the policy to be less restrictive and more consistant with the way the management wants to run the business, can meet all the goals. For example, many businesses do not allow relatives in direct reporting relationships, but do allow them in different parts of the operation.

As far as comparing married people to same sex relationships -- since there is no legal status, it is really hard to compare. I would not want to make the HR into a witch hunt for personal relationships. Make a policy that puts the burden on the employee to come forward, the apply it consistantly.

Good Luck!