Posted on 08/10/2018 at 06:00 PM by Jill Jensen-Welch
“Hello. HR? This is Sally’s husband and I’m calling to let you know that I think she’s having an affair with her co-worker, Bob.”
“Hello. HR? This is Dan’s mother and I’m calling to talk to you about this letter you sent to him about his time away from work for rehab.”
Several times a year I run across a client who has been communicating with an employee’s family member about workplace matters. I shudder every time. Employees have confidentiality and privacy rights that make talking to others about them, even when it is a family member, a risky proposition.
How It Happens
You don’t have to be in management or HR long before you get a call or visit from an angry spouse or other S.O. of an employee who is feeling harassed or who is suspected of having an affair with someone s/he works with. Also common are employees with addiction problems that the family member is trying to address or help the employee hide from the employer. Perhaps the most common employer-family member communications occur when employees have medical issues where a complex web of leave policies, benefit plans, reasonable accommodations, medical provider inputs, return to work issues, and personal financial strains have to be simultaneously addressed—all at a time when the employee needs to focus on treatment and recovery rather than employment.
Family members sometimes initiate contact with a supervisor, manager, executive, or HR department in order to open up a communication channel about specific employment-related matters for their loved ones. The family member may be well-meaning, or s/he may be more nosy than helpful. Either way, yellow, flashing lights should go off in the employer representative’s head whenever a family member stops by, calls, texts, emails, or otherwise makes contact to discuss an employee matter.
Employees sometimes ask, or otherwise encourage, family members to contact a supervisor, manager, executive, or HR professional to advocate on their behalf. This might be done because they do not sufficiently understand an employment matter, they do not feel able to handle an employment situation or an individual they work with, they are trying to avoid direct communications with the employer for some reason, or they might be trying to manipulate the employer or the family member. Regardless, you should still heed the metaphorical yellow, flashing lights.
Family member involvement in work issues seems to occur most often when an employee feels vulnerable at work—or when the family member believes the employee is vulnerable at work. Situations that can lead to such vulnerability can include an employee who is having a conflict with someone at work, is undergoing discipline, has been terminated from employment, has a disability or serious health condition that interferes with the ability to go to work or perform successfully, needs or is on medical or other protected leaves from work (e.g., FMLA, pregnancy leave, military leave), or has felt bullied or harassed at work.
Employer representatives most at risk for engaging in improper communications with employee family members are those who do not realize they shouldn’t, those who are being overly nice, those who are sympathetic to the employee or family member, those with a personal connection to the family member, or those in a community where ‘everybody knows everybody’ so that the boundaries are blurred.
When It Is OK to Talk to Employee Family Members
- Socially. Of course, socializing with family members of employees is OK—as long as the topics discussed have nothing to do with the employee’s employment. The trick is to keep the discussion away from those topics.
- Emergencies. If the employee is a no call/no show for work, or has an accident, injury, or illness at work, then, by all means, get out the Emergency Contact form the employee completed and contact that designated person about the emergency issue. Even here, however, keep your conversation limited to the emergency at hand. When the emergency has passed, so has your permission to communicate with the employee’s family member—even when the employment issue continues beyond the emergency.
- Incompetence. You can talk to an identified family member about employment matters when the employee is an unemancipated minor, or when the employee has been deemed mentally incompetent to handle their own business or monetary affairs. An unemancipated minor is under 18 years of age and still subject to the control, authority, and supervision of parents or guardians, as determined by state law. A person who has been deemed incompetent to handle their own affairs usually has a court-appointed guardian or conservator. (Get documentary proof that a minor has been emancipated, or that an adult has a guardian or conservator and the parameters of that.)
- Incapacity. You can talk to a family member when the employee is incapable of communicating. This usually requires the employee to be in a coma, in surgery, trapped in a wrecked car, missing, in jail, or something along these lines. This category does not include employees who don’t speak English, are illiterate, or who are non-verbal. These are standard, daily communication challenges that need a better solution than getting a family member to translate/communicate.
- With Permission. Employers can talk to an employee’s identified family member about employee issues if a court or the employee has given permission for that family member to do so. I prefer formality in this circumstance. Get a copy of the legal Power of Attorney, or get some other written permission signed by the employee (assuming the employee is competent to sign legal documents).
- Consult with Legal. There may be other circumstances that allow for communicating with an employee’s family member about work-related matters beyond the five fore-mentioned categories. If you run across one of those, seek advice from legal counsel.
Tips for HR Professionals and Supervisors/Managers
- Don’t complicate your life by talking to employees’ family members beyond the six categories of situations listed above.
- Keep your communications about work-related issues between the employer and employee, whenever possible.
- Be kind, yet firm, when declining family member communications, or delaying them while you get advice from an attorney who practices in labor and employment matters.
- Let the employee know you’ve been contacted by his or her family member and make it clear that you will communicate with only the employee about employment matters, unless the situation falls into one of the categories listed above.
- Even when you have a green light to talk to an employee’s family member, keep the conversation limited to the scope of the employee’s permission and the issue at hand. Be careful not to wander into other territory.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
The material, whether written or oral (including videos) that is posted on the various blogs of Dickinson Law is not intended, nor should it be construed or relied upon, as legal advice. The opinions expressed in the various blog posting are those of the individual author, they may not reflect the opinions of the firm. Your use of the Dickinson Law blog postings does NOT create an attorney-client relationship between you and Dickinson, Mackaman, Tyler & Hagen, P.C. or any of its attorneys. If specific legal information is needed, please retain and consult with an attorney of your own selection.