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A HUUUUGE Hire: Learning From the Actions of Our Future President

Before we begin, a disclaimer: this IS NOT a political blog, or an endorsement or a criticism of our President-elect.  This is merely an informational blog.  Accordingly, please delete the emails you have started typing, telling me in all caps how dumb I am.  Thank you.  Now, on to the lesson.

Recently, President-elect Trump stated that he plans to hire his son-in-law, Jared Kushner, as a senior adviser to the President.  There is one small problem with this potential hire: it might be in violation of federal law.  Under federal law, a public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control, any individual who is a relative of the public official.  The law defines “public official” to include the President, and states that a “relative” includes a son-in-law.  Clearly for President-elect Trump to appoint Kushner as a senior advisor is a violation of this federal law, right?  It is not as clear as one may assume, and President-elect Trump may point to his old buddy, Hillary Clinton, in support of his appointment.

In 1993, then-President Bill Clinton appointed his wife to chair a task force for health care reform.  This appointment was challenged in federal court in Washington, D.C., on the basis that it violated the federal law discussed above.  The Court sided with Slick Willy and stated that the anti-nepotism statute did not cover staff of the White House or the Executive Office of the President.  Accordingly, while then-President Clinton could not have appointed Hillary to be attorney general, he was free to have her serve as chair of the task force or act as an advisor.

Based on that ruling, President-elect Trump may be free to appoint Kushner as his advisor.  Another argument President-elect Trump may make pertains to Kushner’s pay.  The law specifically states that “an individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.”  This means that at worst, if the appointment violates the law, Kushner merely isn’t entitled to pay for his services.  While this may violate other wage payment laws, I can assume Kushner doesn’t plan on suing Trump for unpaid wages.

Although it is likely that most of the people reading this blog will never have to deal with federal anti-nepotism laws, general employers can learn from this scenario.  The anti-nepotism law is in place to prevent favoritism or the appearance of benefits being provided to an individual solely because they happen to be a family member.  Employers should have similar policies in place to prevent relatives from being each other’s subordinates and supervisors.  If employers do not have such policies in place, it generally leads to issues such as claims for harassment and discrimination from either the person in the relationship or the co-workers who are not being treated as favorably.

While not everyone agrees on politics, we can all thank Trump and Hillary for this lesson on nepotism.  For questions about this or any other labor and employment topic, please do not hesitate to contact a member of our Labor and Employment Department.

RAFFLE:  We are giving away two tickets to the January 25, 2017, Phantoms game.  If you would like to enter to win the tickets, please send an email with your name, email address, and phone number, by tomorrow, January 18, at noon, to Jacqueline at jehrenkranz@nmmlaw.com.  We will notify the winner this week.