Some states (twenty, as of this writing) have discrimination laws that prohibit employers from making hiring or firing decisions based on marital status. The other states have no such law, but there are still many questions that surround anti-nepotism. Should businesses be allowed to prohibit employees from marrying one another, and if so, how should a business creat a no-spouse rule for its employees?
There are thousands of businesses nationwide that have created no-spouse rules for their employees. They argue that spouses should not work together under and circumstances because it promotes favoritism. This is especially true in business situations where one spouse is higher on the business heierarchy than the other. Some businesses even extend anti-nepotism rules to relatives, such as brothers, sisters, parents and children. It is usually legal to create such a rule, but it might not be enforceable.
The U.S. judicial system has been split when it comes to no-spouse rules in business. On the one hand, employees argue that these rules are violations of their constitutional rights to marry. Businesses, however, have argued that they have no desire to stop two people from getting married; their rules simply prohibit them from working for the same company. The liability and productivity concerns that businesses express are valid, which is why the courts often come down on the side of the no-spouse rule.
Some states, however, have set precedent for ruling anti-nepotism as unconstitutional. The Hawaii Supreme Court, for example, ruled in favor of two employees who worked for a major hotel chain. The hotel management fired one of the employees when the two were married based on their no-spouse rule, but the court recognized that the hotel chain would have kept both employees on staff had they simply continued to co-habitate rather than getting married, which was deemed discrimination. Hawaii is one of the twenty states which has a non-discrimination law on the basis of marital status.
If you are hoping to create a no-spouse rule for your business, you must be smart about it. First, hire an experienced attorney who can draw up the paperwork for implementing the rule. Further, you should make sure that all of your employees are aware of the new no-spouse rule, and that you create a system for addressing questions or concerns.
The most important thing about creating a no-spouse rule for your business is that you are consistent. You cannot fail to enforce the rule just because you don’t want to lose a valuable employee, but enforce the rule on someone whose work is not as efficient. There can be no favoritism in this case whatsoever because the no-spouse rule itself borders on discrimination, according to the laws in many U.S. states.
You might also consider implementing a no-spouse rule by degrees. Start out by forming a company policy that prohibits spouses from working at different levels in the company. For example, a man could not be the supervisor of his wife, and vice versa. This is fairly standard because putting a married couple in this situation is likely to create dissention among the other employees, who are likely to report favoritism. Once your business as grown accustomed to that policy, you can begin to develop a more stringent no-spouse rule to promote anti-nepotism.
Reference:
- www.entrepreneur.com, Common Small Business Legal Mistakes, Legal Basics of Business Ownership by Renee
