Philosophy / Neoptism In The Workplace
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Autor: anton 10 September 2010
Words: 1629 | Pages: 7
When employees bring their personal problems to work and it affects their performance or the performance of others, clearly you can coach, counsel, warn, and ultimately terminate their employment. In cases where employees did not cause a problem at work but were fired merely because of an anti-nepotism policy, courts in some states found the employees had been discriminated against on the basis of marital status. Such policies penalize employees who are married, as compared to unmarried employees whose relationships are equally intimate. Currently, thirty-eight (38) states prohibit marital status discrimination. Having a more general policy prohibiting employees who co-habit from working in the same area would not violate marital status laws, but could be considered an invasion of common law privacy, which is recognized in most states (Risser 1997). In my paper, I will address the issue of anti-nepotism, and invasion of common law privacy. What business is it of the organization if people co-habit? How are employers supposed to know who is living together? The prohibition against invasion of privacy by the government is enforced, yet anti-nepotism policies seem to supercede even those more strictly.
What is Nepotism? Nepotism comes about whenever an employee makes decisions affecting a close relative or domestic partner. Included in these decisions are those that pertain to "hiring, appointment, reappointment, classification, reclassification, evaluation, promotion, transfer, discipline, supervision, or pay increases". According to the King County Board of Ethics, nepotism is a conflict of interest based on familial relationship or domestic partnership, and is inconsistent with the basic principles of ethics (Edwards 1998).
The practice of nepotism is said to be inconsistent in instances that require impartial decision-making and attempts to ensure that private interest or personal benefit does not override the public's interest. In addition, nepotism creates situations that appear of improper influence or favor. As such, anti-nepotism policies have been written to protect public organizations from adverse lawsuits. There are many discriminatory clauses of anti-nepotism policies, as they pertain to individual lifestyle and privacy.
Although an anti-nepotism policy does not expressly discriminate against an applicant based on the condition of being married or unmarried, it may exclude a person because of the particular identity of his or her spouse. Whether spousal identity Ð’â€“ as opposed to marital status per se Ð’â€” is a prohibited basis for discrimination is an unanswered question under many discrimination laws
An unwritten facet of many anti-nepotism policies maintains that relatives are not to be hired within the same office. The problem with this is that even if relatives work at the same level (and one is not the supervisor of another), they still would not be allowed to work together. Anti-nepotism policies seem to imply that relatives and/or domestic partners have an adverse affect on productivity when placed in the same office. Although there is no basis for this assumption, many public agencies adopt anti-nepotism policies to guard against non-performance.
In Boaden v. State of Illinois, 642 N.E. 2d 1330 (4th Dist. 1994), a male and a female state trooper, who were both assigned to the same squad car, told their captain that they planned to marry. The captain informed them that, pursuant to the State Police's unwritten anti-nepotism policy, spouses were prohibited from working in the same squad car and patrolling the same area at the same time. The captain offered the troopers several options for changes thereafter. After they were married, the couple filed charges with the Illinois Department of Human Rights based upon marital status discrimination. The court found that the State Police's anti-nepotism policy did not discriminate against the state troopers based upon their marital status. The male trooper was not reassigned because he was married per se, but because his spouse worked in the same squad car (Green 1998).
Many anti-nepotism policies define domestic partnership as those employees who live together. The contention is that individuals living in the same residence constitute one household. In this case, there is a conflict of interest because one household would be paid an income twice from the same organization (Huerta 2000). This double-payment per household standard is unfair for those employees who wish to co-habit.
Ironically, anti-nepotism policies do not pertain to domestic partners of the same sex. For example, two male employees living together would not be punished for violating anti-nepotism policies. In contrast, employers always seem to have a problem when two employees of the opposite sex live together, and work in the same office. This aspect of anti-nepotism policy can be construed as anti-heterosexual.
Another problem with anti-nepotism policies is that they pertain to the private affairs of employees Ð’â€“ those associations that are "off-the-clock". In essence, employees are penalized for engaging with those who work in the same office. A Maryland Circuit Court decided that an employee's intention to marry a co-worker was not the exercise of a statutory right Ð’â€“ upholding anti-nepotism policy beyond that of the office (Shawe 1997).
What is privacy? While the United States Constitution contains no expressed privacy provision, decisions of the United States Supreme Court beginning with its opinion in Grisworld vs. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965), have recognized the existence of an implied right of privacy. Employees have the right to be protected from unreasonable intrusions into their private affairs. The question here is, what is unreasonable and what is private? The meaning of "unreasonable" is up for grabs, because it means whatever the employee's expectation of privacy is. In O'Conner vs. Ortega, 107 S.Ct. 1492 (1987), the Supreme Court recognized that public employees may have a legitimate expectation of privacy at their place of employment and that they do not lose their fourth amendment rights merely because they work for the government (Johnson 1995).
What is Common Law invasion of privacy? Aside from the Constitution, both public and private employers may be subject to liability under state judgement law (i.e., the "common law"). There are many different forms of invasion of privacy, few of which are relevant to the employment context.
The unreasonable disclosure of personal facts is a form of tort of invasion of privacy. This form envisions the unnecessary disclosure, and circulation, of those matters concerning the private life of another to the public Ð’â€“ that of which is not of legitimate concern to the public. Under this premise, it is irrelevant that the facts disclosed may be true, and is based on the personal nature of the facts disclosed by employees (Ibid. Johnson). Taking this into consideration, I contend that the responsibilities of anti-nepotism policies require that employees give up their right against unreasonable disclosure of facts. Many anti-nepotism policies vie that while management has an affirmative obligation to address nepotism when it occurs in the workplace, management may also not be aware of specific family or domestic partnership relationships Ð’â€“ that of which may create situations where nepotism occurs. Thus, the responsibility for identifying and addressing conflict of interest issues rests with public employees and supervisor, managers, or appointing authorities (Ibid. Edwards). This responsibility for self-identification of possible conflict of interests begs the question of whether nepotism-issues invade the zone of personal privacy when it comes to the workplace. Having to disclose your personal relationships constitutes a waiver of the privilege to keep your personal affairs to yourself.
The unreasonable intrusion into the private affairs of another is another form of invasion of privacy. An employer may be held liable if he/she intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another on private affairs or concerns. This tort is based on psychological distress caused by the intrusion itself. It is not necessary that the employer learn anything embarrassing or private about the employees.
Overall, there is a pattern of the judiciary demonstrating that there is almost no privacy in the workplace. At least, when it comes to personal time vs. company time, anti-nepotism policies have upheld that while employees are clocked in, they have minimal to no rights to privacy. Ross states that, "so far, the courts have consistently upheld employers' rights over employee privacy rights" (2000). For example, a federal law (the Omnibus Crime Control and Safe Streets Act) generally prohibits an employer from listening to employee phone calls. However, the Act may allow an employer to use an extension phone to monitor employee phone calls under some circumstances (Parsons 1999).
Seemingly, every workplace has confronted the issue of interpersonal or familial relationships among its employees and the perceived unfairness that may result from such relationships. With growing concerns about justice in the workplace, many employers have enacted anti-nepotism policies to prohibit or circumvent employment actions based upon unfair favoritism rather than on legitimate employment qualifications.
Although establishing an anti-nepotism policy may appear to be a quick and easy way to deal with interpersonal and familial relationships in the workplace, employers should take heed of potential problems with such policies. First, the policy should be uniformly applied so that it does not have a discriminatory effect on any protected class of employees. Second, an overly broad policy may unnecessarily interfere with or intrude upon an employee's personal privacy rights. In an effort to avoid these problems, some anti-nepotism policies only prohibit employees who are related from supervising each other. Even such narrowly drawn anti-nepotism policies, however, may violate state civil rights laws prohibiting marital status discrimination (Ibid. Green).
If an employer desires to establish an anti-nepotism policy that affects spouses, the policy should be based upon reasonable and identifiable factors for preventing unfair favoritism and conflicts in the workplace. The policy should provide adequate options for addressing favoritism concerns while balancing the concerns of the spouses. Also, the policy should not be limited to spouses but should encompass any relationship (within reasonable concerns of personal privacy) that would create unfair favoritism or nepotism in the workplace.
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