Home > Insights > Publications > Could your company’s freebie for furloughed workers be an ethics problem for them?
As the Government’s partial shutdown continues, several companies are offering freebies, discounts, or loans to Government employees and others. The longer the shutdown has gone on, the bigger the offered benefits have become. Unfortunately, such offers could ultimately hurt the very people the companies are intending to help (and in some cases hurt the companies, too) due to prohibitions on what Government employees can accept from outside sources.
Although many of these offers likely will not cause an issue for the employees or the company, some may. Thus, companies that are considering making these offers should carefully consider the applicable regulations and laws.
The General Rule
Government employees must comply with ethics laws and regulations that govern when they can accept things of value from others. These laws and regulations apply even when the employees are on furlough.
One of these regulations prohibits Government employees from soliciting or accepting a “gift” from a “prohibited source” or “given because of the employee’s official position.”[1] A “gift” can mean a broad range of things, including any:
- gratuity,
- favor,
- discount,
- entertainment,
- hospitality,
- loan,
- forbearance,
- other item having monetary value,
- training,
- transportation,
- local travel,
- lodgings, and
- meals.[2]
If an employee’s ethics office later determines that the employee accepted an item in violation of the regulations, the employee’s agency may reprimand, suspend, demote, or remove the employee from his/her position.[3] If the offer was intended to influence the Government employee, the employee and the person or company offering the item could also face prosecution or fines.[4]
Some exclusions and exceptions and how they work
Despite the broad rule, there are certain offers that are excluded from the definition of “gift” (meaning employees may generally accept them), and there are also exceptions to the rule. Many of the offers being made to Government employees now may fall under an exclusion or exception, including those described below, but some may not.
A common offer that is excluded from the definition of “gift” is a favorable rate, discount, or similar benefit that is offered to the general public or “all Government employees.[5]” Note the world all. Thus, an offer that is made to only a subset of Government employees (such as only furloughed or impacted Government employees) is a “gift.”
Nevertheless, some offers made to a subset of Government employees may be a “gift” that could be accepted under one of the exceptions to the rule.[6] One of the commonly used exceptions applies to smaller gifts.[7] This exception generally allows a Government employee to accept unsolicited gifts where (a) the market value of the gifts is less than $20; (b) the employee’s acceptance of the gifts would not result in the employee accepting $50 or more in gifts from the source in the calendar year; and (c) the employee does not pay the gift-giver for gifts it receives in excess of the $20 limit.[8] This exception applies on a per-occasion basis and not a per-person basis. Thus, when an offer includes guests of the Government employee, the per-occasion limit includes the market value of the offer for all people accompanying the Government employee.[9]
The Takeaway
Although your company may want to help those impacted by the partial shutdown, if Government employees accept your offer in violation of their ethics obligations, they may face disciplinary actions once they return to work. Thus, if you are considering making an offer to help them, make sure you are considering their (and your) ethics obligations and make sure you understand the exclusions and exceptions to the gift-acceptance regulation. Doing so will help your company make sure your offer does not do more harm than good.
Jayna Marie Rust is an associate attorney in our Washington, D.C. office. She regularly counsels Government contractors and federal grant recipients on how the gift-acceptance regulations could affect their business decisions.
[1] 5 C.F.R. § 2635.202(a). A “prohibited source” includes any person or entity that seeks official action by, does business with, or is regulated by the employee’s agency. 5 C.F.R. § 2635.203(d). The regulation provides further information on other prohibited sources. “Because of the employee’s official position” means the gift “would not have been given had the employee not held the status, authority, or duties associated with the employee's Federal position.” 5 C.F.R. § 2635.203(e)
[3] 5 C.F.R. §§ 2635.102(g) and 2635.106(a). Each agency is responsible for enforcing these regulations, along with specific agency regulations. 5 C.F.R. § 2635.106(b).
[5] 5 C.F.R. § 2635.203(b)(4).
[6] This alert does not detail all of the exceptions. Further discussion of some exceptions can be found in this author’s prior articles: “Gift-giving policies: Seven ethics checks in light of OGE’s Updated Standards” and “Connecting more: Two ways the revised OGE gift standards ease communication with government employees.”
[7] 5 C.F.R. § 2635.204(a). The aggregate amount of gifts from the source cannot exceed $50 per year. Id.
[8] Additionally, it cannot be a gift of cash or investments. 5 C.F.R. § 2635.204(a).