Q. To prevent productivity and morale problems, we would like to adopt a policy banning the hiring of our current employees’ spouses. Would this be lawful?
A. A blanket prohibition on hiring spouses may conflict with a provision in California’s Fair Employment and Housing Act (FEHA) that prohibits employers from discriminating on the basis of marital status.
However, the regulations interpreting FEHA allow an employer to prohibit spouses from working “in the same department, division or facility” based on “reasons of supervision, safety, security or morale.”
The regulations further state that the employer can prohibit a spouse from working under the direct supervision of his or her spouse, or refuse to allow the couple to work in the same department or facility, if that would create potential conflicts of interest or other problems that wouldn’t be an issue for workers who are not married.
If current employees marry, the FEHA regulations state that the employer should make reasonable efforts to organize job duties to avoid supervision, safety, security or morale problems. Thus, any policy that regulates the employment of spouses should distinguish between a spouse of a current employee applying for a job and two existing employees who marry.
Also keep in mind that state and federal laws prohibit discrimination on the basis of gender. Thus, an anti-nepotism rule that has an adverse impact on members of one gender may be subject to challenge. For example, you should not adopt a practice of transferring wives but not husbands when current employees marry.