Answers to Your Nepotism Questions

This week I'm answering some questions that were posted on my old post, Nepotism Is Not Illegal.

My husband was passed over for a job he was qualified for because of nepotism. This in law enforcement in Utah, and he has been passed over twice based on the fact that my brother already works for the department. So now is there anything he can do? Or does he just have to roll over and take it?

Ilse

Hi Ilse. It sounds like your husband is being subjected to an employer's own anti-nepotism policy. While nepotism is generally not illegal, some employers, especially government employers, have rules or even laws prohibiting hiring of relatives. That's because sometimes relatives take advantage and hire their no-account nephew, their drop-out daughter, or their burn-out uncle. Other employers have more specific anti-nepotism policies saying employees cannot hire or supervise their relatives.

Utah's Nepotism Act apparently makes it unlawful to appoint, supervise or make salary or performance recommendations for a relative. That means your brother can't make the decision to hire your husband, but it doesn't sound like there's a complete ban on hiring relatives. Maybe it's in the union contract or somewhere else. If the ban is simply that your brother can't supervise or hire your husband, then I'd suggest having your husband reapply and hand them a copy of the law showing that it doesn't prohibit the department from hiring him.

Here are some more state anti-nepotism laws.

What about nepotism in a nonprofit nursing home where 99% or more of their income is from Medicare/Medicaid?

Steven

Hi Steven. I haven't found any prohibition against a privately-owned nursing home hiring relatives of employees or owners, whether or not they have income from Medicare or Medicaid. If your employer wants to fire you so they can hire their son, daughter or wife, it's probably legal for them to do so.

I have a question regarding refusal to hire because of relation. I worked with my husband (when we were still dating) at his current employer. I submitted a resume because they stated I was not applying within the department so I was eligible. And I left on good terms. But now that my resume has been submitted, they say no because of the nepotism policy they have in effect. Can they deny my employment for this reason? AND if so, would they have been able to fire one of us after we got married while I was already employed there?

Ed

Hi Ed. Yes, an employer can deny you employment if it violates their anti-nepotism policy.  Some states, like Florida, have laws saying that employers can't discriminate based on marital status. However, I don't know of any law that prohibits an anti-nepotism policy. You can be fired for marrying a coworker, but can't be fired just because you got married in general. For employees being fired because they married a coworker, I usually look at that situation under sex discrimination laws. If only one of the two married partners is being terminated, it might be sex discrimination. Most employers tell the couple that they must pick which one is to leave, or both will be fired.

Nepotism Is Not Illegal

            I probably get at least one inquiry a week from someone absolutely sure that they’ve been a victim of nepotism. The boss is hiring family members or friends. A family member is promoted even though she’s incompetent or inexperienced. Or even worse, they complained about the incompetent family member and were fired.

            The injustice of it all. Surely they can sue!

            Nope. Sorry. There is zero I can do about nepotism. Zip. Nada.

            Playing favorites is not illegal. Hiring relatives is not illegal. Not if you’re in the private sector. Now, if you work for government, every state has some law about conflict of interest or hiring relatives at certain level. You’ll have to check your state and local laws if you work for government and think something illegal is going on.

            But nepotism in the private sector? It’s expected. It’s mostly legal. Here’s what might be illegal in a situation involving nepotism:

            Failure to disclose: Under Sarbanes-Oxley, management has to disclose potential conflicts of interest. So hiring of relatives, while probably legal even for publicly-held companies, can’t be hidden from shareholders. The SEC can be called in to investigate allegations of undisclosed conflicts. If you object to this type of illegal behavior, you might be a protected whistleblower.

            Discrimination: If the favored few are all of the same race, religion, national origin, or other protected category, the company could be engaging in illegal discrimination.

            Sexual harassment: If the boss favors only individuals who have engaged in sexual relations with her, and you’ve turned her down, you might have a sexual harassment claim (although sexual favoritism is mostly legal).

Donna’s tips:

a.       If your boss is the owner’s niece, be nice. I don’t care if she’s incompetent. Deal with it.

b.      Don’t write a long letter complaining about the incompetent friend or relative. It can and will get you fired.

c.       If you think the company has crossed the line into illegal discrimination, or you work for a publicly-held corporation and they are treating it like a family business, you might want to talk to an attorney about potentially blowing the whistle. Just be careful. Most Sarbanes-Oxley whistleblower cases are dismissed. They are difficult to bring and difficult to win.

d.      If you see that only friends and relatives have a future at your company, start looking. Get out on your timetable rather than waiting until you’re forced to leave on their terms.