Published on November 27th, 2018 by Alan L. Sklover
“The road to hell is paved with good intentions.”
ACTUAL CASE HISTORIES: Each year, without fail, I get five to ten emails from employees who have either (a) given a gift at work and gotten into trouble for doing so, or (b) received a gift at work that is either causing discomfort or a problem. As you might imagine, most of these calls come shortly before or shortly after the year-end holiday season.
LESSON TO LEARN: Today more than ever, you need to devote a measure of thought to (a) why you are giving a gift, (b) how it may be perceived or misperceived by the recipient (or others), (c) for what reason or purpose another person may be giving you a gift, and (d) whether that gift to you might be a sincere gesture, a thinly disguised bribe, or a “payoff” for past favors. In fact, when giving or accepting a gift at work, it is the potential perceptions of others that can be far more dangerous than your own intentions.
To prevent even the perception of impropriety, and to discourage even the slightest offense, many company policies, laws, rules and regulations have been put into place that address – and in certain circumstances prohibit – giving and receiving gifts at work, and in business affairs.
As examples: How might your gift-giving look to compliance officers who work for your employer? Might a rather expensive gift be viewed by Human Resources as a subtle form of sexual harassment? Might your gift be viewed with suspicion, or even anger, by the husband or wife of its recipient? Is a gift a sign of generosity, or perhaps a disguised bribe? If you give some, but not all, of your office mates gifts, might some of those “left out” perceive themselves as outcasts, or victims of favoritism or even discrimination?
I often say “These days you have two jobs: one is to do your job, and the other is to keep it. This is one context in which that surely applies. Since your gift-giving might result in a perception or accusation of misconduct. Before giving or accepting a gift at work, take just a few moments to review and consider the many possible interpretations of your gift-giving or gift-accepting behavior.
Do I intend to make you paranoid? Yes, I do, but just a little.
WHAT YOU CAN DO: Consider these 10 Practical Pointers on gifts at work:
1. Your Intentions in giving or accepting a gift at work are not what really count; what does count, instead, are the many possible perceptions of others. Above all, it is important that you bear in mind that, regardless of how innocent, charitable or genuine your intentions may be in giving or accepting a gift at work, your intentions are not your best guiding principle. Instead, you need to imagine yourself to be in the shoes of other people, including (a) the gift’s recipient, (b) the gift’s giver, and (b) any and all other third parties who will likely become aware of it, one way or the other.
Take a few moments to imagine what their possible perceptions might be. This surely isn’t an easy thing to do, as there are so many possible perspectives, but it is a very valuable practice if you’re going to give or receive workplace gifts or gratuities.
Who might be these “many other” people? They include, as noted below, (i) compliance officers, (ii) Human Resources staff, (iii) your employer’s legal counsel, (iv) the recipient’s spouse or partner, (v) colleagues who do not receive your gifts, (vi) regulators of your industry or profession, (vii) law enforcement officials, (vii) human rights agencies, (viii) jury members, and (ix) tax authorities, just to name a few.
2. Could your gift giving, or gift receiving, violate company policies, ethical guidelines, laws, regulations or compliance rules? Employers vary widely in how they address, or don’t address, gift giving and gift receiving at work, ranging from supporting it, to ignoring it, to prohibiting it. In many regulated industries and professions the practice of gift-giving or gift-receiving is strictly regulated, even outright prohibited.
If someone whose job it is to rate bond investments as being either “safe” or “unsafe” for investors received an expensive watch as a holiday gift from a company whose bond investments she rates, does that seem wrong? Should it be illegal? Well, it is probably both. People have gone to jail for giving, and receiving, such gifts in such circumstances.
3. Might your gift be perceived as a bribe or payoff? If a gift is given to someone at work, or related to your work, who is in a position to return the “favor” by how they treat you or your interests in a preferred or even illegal fashion, it just might be viewed by some as a bribe.
Imagine, just for a moment, you were in a lawsuit, and learned that each year for Christmas, the attorney for the other side gives an expensive gift to the Judge in your case. Would you believe that the Judge forgets those expensive gifts when making her decisions? If a plumber gave a $100 gift certificate to a plumbing inspector who regularly inspects that plumber’s work, might it be viewed by others as a bribe or payoff? I would.
Planning of Giving a Gift? Use our Model Memo Seeking Guidance from HR, Legal and Compliance for Gift Giving at Work. It shows you “What to Say and How to Say It”™ Just [click here.] Delivered by Email – Instantly!
4. Might your gift be perceived as too personal, intimate, or stepping over appropriate boundaries? Is a man giving a female office subordinate a silk handkerchief inappropriate? A silk scarf? How about a silk bathrobe? Is giving a male colleague a bottle of cologne improper? A bottle of wine? How about a bottle of Viagra? Each of us has “weak spots” even in our best judgment, no matter how mature, sober and reflective we think ourselves to be.
5. Might others who do not receive such gifts view your gift-giving as preferential, playing favorites, or even discriminatory? I once represented a Business School Dean who coached one of her office assistants with his career planning. The two would have lunch in the Student Union cafeteria once a week or so to discuss career planning issues and strategies.
Months later, two other office assistants, who had never been asked to lunch, filed complaints with University HR alleging favoritism, discrimination and harassment on the basis of this “occasional hamburger lunch” practice. As you can imagine, unsavory rumors quickly spread. Not a good thing, that is for sure. Might it have been avoidable by the Dean considering the potential feelings – and perceptions – of others? I think so. At the same time, have I ever done anything similar to what she did? Probably so.
6. Reasonable limits must be considered as to the value of workplace gifts. The value of a gift given or received at work can make a big difference in how it is perceived. Generosity is a virtue, but inappropriate generosity is often suspect. Some employers have guidelines on the limits of generosity, but most do not. Commonly, it is a matter left to judgment. It’s one thing to make a workplace gift of a restaurant meal; it’s another thing to give someone a week-long, all-expense-paid trip to an exclusive resort.
7. Your sense of humor may not be your recipient’s, their spouse’s or senior management’s sense of humor. I have seen many funny holiday “gag gifts” be met with both laughs and groans. A very common example are coffee mugs adorned with the funniest, and at times grossest, sayings written on them. Some refer to bodily functions. Some use coarse language. All seem so funny. Well, perhaps to me, but they would not seem funny or “appropriately funny” to everyone.
Here’s a good rule of thumb to go by: imagine your Grandmother Tillie or Great Aunt Mildred receiving the “hilarious” gift you are giving. Might they consider it in poor taste? If the answer is possibly “yes,” well, that might be your CEO’s view, as well.
8. Consider as an alternative gesture of good will, congratulations or appreciation a kind note or a contribution to a favorite charity, instead of a gift or gratuity. Expressions of gratitude, words of kindness, and honoring someone with a charitable contribution to their favorite charity are gestures that don’t carry with them the risks associated with objects of value, but do leave a very lasting and positive impression on most people. There is a saying that “A debt of gold is easily repaid, but an act of kindness can never be fully repaid.”
9. If you receive a gift from a colleague at work, or a customer, does that make it safe to give one back? On first blush, you might think so. On further thought, it might not be. Here’s an example: If you are a pharmaceutical company sales representative, and a hospital administrator gives you a small holiday present, your returning the courtesy might well violate your company’s marketing policies, FDA regulations, or even be illegal. The same thing goes for a subordinate’s gift to his or her manager; many companies forbid such “gifts” as possible paybacks for preferential treatment in the past, or as encouragements for preferential treatment in the future, regardless of “who gave first.”
Have you Accepted a Gift at work? Use our Model Memo to Seek Guidance from HR, Legal, and Compliance if You Have Accepted a Gift at Work. Shows you “What to Say and How to Say It”™ Just [click here.] Delivered by Email – Instantly!
10. Regarding workplace gifts, whether giving or accepting one, it might be wise and safest to request guidance from your employer’s Human Resources department, Compliance Advisor, or Legal Counsel’s office. This is not commonly done, but nonetheless may just be a wise and safe step to take. It may well result in your learning of rules, restrictions and guidelines of which you were entirely unaware.
P.S.: If you would like to speak directly about this or other subjects, Mr. Sklover is available for 30-MINUTE, 60-MINUTE, OR 120-MINUTE TELEPHONE CONSULTATIONS, just [click here.] Evenings and weekends can often be accommodated.
In Summary . . .
It’s very nice to give a reasonable gift to a staff member, colleague, vendor or business relation, whether around the holidays, or in the event of a birthday, promotion, becoming a parent, or other special event. Whatever your intentions may be, it is prudent to first consider whether making or receiving a gift might offend anyone’s sensibilities, raise anyone’s suspicions, initiate anyone’s resentment, or violate any policy, rule or regulation. Risk to job security, reputation and professional licensure needs to be avoided if at all possible. It is hoped that this newsletter has, to some extent, opened you eyes to at least some of the source of such risk.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those who may give or receive gifts at work, an extra ounce of precaution, prudence and consideration of other people’s possible perspectives on your doing so is surely in order.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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