As Valentine’s Day approaches, now is as good a time as any to remind employers how to manage office romances and how to avoid liability resulting from them. Outright Bans On Office Relationships Don’t Work. In any workplace, romantic workplace relationships are inevitable, regardless of any policies employers may put in place to prohibit them. These policies simply are unrealistic and ineffective, as policies that prohibit romantic relationships between coworkers merely prompt employees to hide the relationship and lie to cover their tracks. As you can imagine, this behavior does not bode well for a happy, productive workforce … and that’s before the relationship heads south. Imagine trying to supervise an employee who just got dumped by her (covert workplace) boyfriend. When you ask her what’s going on with her performance, she either lies and tells you nothing, which perpetuates the secret, or she unleashes the tale of the forbidden affair and all its details. This leaves you, the employer, with two choices. You either enforce your “Workplace Relationships Are Prohibited” policy, which means you may have to fire two good employees for something that likely could have been avoided, or you choose not to enforce your policy, which sends a message to your employees that you don’t enforce your policies. And keep in mind co-workers will know about the relationship long before you ever do, so they will know when you choose not to do anything about it. As you can see, a prohibition on these relationships is not only unrealistic, it’s ineffective and distracting. So, to avoid that awkward situation, recognize that these relationships happen, and put policies and procedures in place to manage them when they do. Steps for Employing a Workplace Relationship Strategy
- Require Disclosure Of Office Relationships.
Rather than banning workplace relationships, a more targeted policy that requires employees to disclose romantic relationships and prohibits such relationships when they involve employees that are in a supervisor-subordinate relationship with each other will be your best approach. Once a workplace relationship is disclosed, the employer can make clear to the employees how they are expected to behave in the workplace (e.g., leaving personal issues for non-working hours, no public displays of affection, etc.) In the event a supervisor/subordinate relationship is disclosed, liability risks are heightened. In addition to potential sexual harassment claims from the subordinate employee if the relationship sours, employers also are likely to face complaints from other employees about perceived favoritism. As a result, once such a relationship is disclosed, the company should review its workforce needs to determine if a transfer or schedule change for either or both of the employees is appropriate to accommodate the relationship. If such an accommodation cannot be made, employees should be informed that if they plan to continue the relationship, they will be given a brief period of time to decide whether one or the other should resign or they may be subject to termination. There is another reason for taking such a severe step. If a relationship between co-workers turns into a complaint of sexual harassment, the employer can be found liable only if it was negligent either in discovering or remedying the harassment. When a supervisor / subordinate relationship sours, however, it will be far easier for the subordinate employee to allege and perhaps even prove that the harassment resulted in a tangible employment action against him or her, in which case the employer will be held strictly, or automatically, liable.
- Have Employees Enter Into a Consensual Relationship Agreement, i.e., A Love Contract.
Some employers may wish to take the additional step of requiring the involved employees to enter into a Consensual Relationship Agreement, (a/k/a, a “love contract”) that establishes workplace guidelines for workplace dating or romantically involved coworkers. The purpose of the agreement is to create additional evidence to limit employer liability in the event that the romantic relationship ends. A love contract is kind of like a pre-nuptial agreement between the two employees involved in the relationship. Instead of dividing assets ahead of time though, it protects the employer and provides that if (when) the relationship fails, neither employee will blame (sue) the company. Although employers may be squeamish about approaching their employees about signing these contracts, the benefit to the employer is that the contract can require the employees to waive claims that may have already accrued prior to the signing of the agreement. So what else should be in a love contract? Typically, a love contract (1) requires the two employees to declare that their romantic relationship is voluntarily and without any type of coercion or duress; (2) requires them to commit that they will not engage in any conduct that would interfere with their work performance and obligations; and (3) reminds them of the company’s anti-harassment and anti-discrimination policies. Finally, another helpful feature that can be included in a love contract is a binding arbitration clause. This type of clause makes arbitration the only grievance process available to the romantically-linked employees and eliminates the possibility of a sexual harassment lawsuit if (when) the relationship ends. Key Takeaways An employer can best handle employee relationships when they are aware of them. If they don’t know about the coworkers’ romantic relationship, the damage is often already done by the time an issue surfaces. Therefore, employers should consider policies that require full disclosure of personal romantic relationships or even require employees to enter into love contracts. Most importantly, employers should be certain that they have updated their anti-harassment policies and that they have appropriately disseminated their complaint procedures to their workforces.