‘Tis the season of generosity, random acts of kindness, and selfless gifts. But not all gifts are well received—or positively perceived. In the employment law context, where compliance and best practice remain the watchwords, presents exchanged by colleagues, however well-intentioned, must still pass muster under law and corporate policy. Below are answers to several questions addressing the appropriateness of workplace gifts given during this time of year.
Q: Are there any employment law concerns about gifts given around the holidays—such as gifts with potentially romantic overtones, such as flowers, perfume, or perhaps an invitation to a one-on-one carriage ride—that may give rise to subsequent claims of sexual harassment? Or are such presents innocuous in the holiday season?
A: The nature of the holiday doesn’t change the nature of the gift exchanged between workers (regardless of managerial or non-managerial level). If an item is one that could lead to questions regarding the sender’s motivation (e.g., a veiled romantic overture), it should be avoided. Failing to do so could create misimpressions as to a sender’s true motive or could lead to the perception of favoritism or inappropriate sexual advances.
Q: Managers sometimes are told not to accept gifts from subordinates. Why might accepting presents from subordinates be imprudent? And how might managers tactfully turn down presents from subordinates?
A: Allowing gifts from subordinates may create the false impression that gift-givers are treated differently than non-gift-givers. It also may allow tacit competition concerning who can give the best, most expensive, or most thoughtful gift, and lead to morale problems or discomfort among employees. A considerate way to turn down a gift from a subordinate is to make it known, graciously but unequivocally, prior to the holidays, that gifts will not be accepted. If such a statement seems Scrooge-like, suggesting that an anonymous donation to a charity would be acceptable (rather than a tangible gift to the supervisor) could be an appropriate alternative.
Q: Are there are any issues with employees giving each other religious presents at this time of year? (It is, after all, a religious time of year for many.) In the workplace, might that be problematic? What limits on presents between coworkers might be warranted?
A: Religious gifts should generally be avoided, both at holidays and at other work times. Such gifts could create the impression that one particular religion is more acceptable than others to the gift-giver, and could lead to discomfort in the workplace on that issue.
Other limits on gift giving in the workplace (besides the “romantic” gifts and the religious gifts mentioned previously) could be related to gag gifts concerning protected characteristics—for instance, “over-the-hill” or other age-related gifts or cards, or items that derogate a physical or mental disability. Such gifts could lead inadvertently to claims of discrimination or inappropriate workplace actions.
Q: What about bosses giving presents or holiday cards to employees? Are there any risks with this?
A: This is simply the inverse of the question regarding managers accepting or refusing gifts, and it raises similar issues. Unless a boss is giving a neutral gift (e.g., a one-pound bag of coffee, local history book, or non-religious seasonal card) to every employee, selective gift giving may occasion claims of preferential treatment, discrimination, and/or workplace harassment.
Q: Are limits on gift giving likely to be perceived as not in the holiday spirit? How can an employer enforce these limits without seeming unfestive?
A: While limits on gift giving could be perceived as “not in the holiday spirit,” the risk avoidance element is more critical to employers. There’s often a fine line between limiting the fun associated with the holidays and creating an atmosphere that could encourage inappropriate behavior. The solution is clear, thoughtful communication. It’s OK to tell employees that there’s a limit on gift giving, and that part of the reason is so that no one feels left out or unable to keep up with the level of gifts exchanged. Setting a reasonable limit—either in value or in substance—could allow employees to understand that the employer is doing this thoughtfully, with the best interests of the employees in mind.
Q: What might be some elements of a company gift policy, both during the holidays and at other times of year?
A: A company-wide gift policy, assuming that the employer is not already limited by regulations or laws, would depend upon the nature of the company or work group, the size of the business, and the holiday being celebrated (i.e., is it a religious holiday or, say, an employee’s birthday?). Policies may also address gifts from outside sources, including contractors, customers, lobbyists, and others. Clear rules supported by language explaining the general rationale for the policy can help employees fully understand the restrictions being imposed.