I have performed two marriages in the last few weeks, and this month we celebrate Valentine’s Day; so, love is in the air. But how should companies respond when love permeates the workplace between employees, as it often does? Are you prepared if Cupid strikes your Company?
When it comes to office romances, love can hurt. See e.g., TJ Holmes and Amy Robach Depart ABC. In fact, in my twenty years of practicing employment law, many of the sexual harassment cases I am hired to investigate involve consensual flirtations and relationships that become too much for one of the parties or eventually results in a quid pro quo arrangement. The employment of individuals involved in a consenting romantic or sexual relationship may cause serious conflicts and problems with favoritism and employee morale. In addition to claims of partiality in treatment at work, personal conflicts from outside the work environment can be carried over into day-to-day working relationships which may lead to unhappy complications and significant difficulties for the employee, the supervisor, and the company.
That is not to say workplace romances always end in disaster. Had I met my wife in the hallowed hallways of Clyde Snow or Jones Day as opposed to the halls of the BYU Jerusalem Center, I am confident I would have still been irresistible to her (it is highly unlikely Emily will read this so this assertion will be deemed admitted as an undisputed fact). But as business owners, you need to be prepared to handle relationships that are not as smooth as Mr. and Mrs. Snow’s. (Never a single argument in 25 years! Again, this assertion will be deemed admitted unless otherwise rebutted).
So here are a few best practices in managing relationships in the workplace to prevent sexual harassment from occurring:
Implement a Personal Fraternization and Relationships in the Workplace Policy
There are many examples of policies we have drafted over the years that range from strict to flexible, but that all aim to prevent sexual harassment by striking the appropriate balance between unfettered love and appropriate and professional relationships in the workplace.
Example 1. Strict Non-Fraternization Policy. It is the policy of the Company to maintain a professional working environment that is free from conflicts of interest and impropriety. Accordingly, employees are prohibited from engaging in romantic or sexual relationships with co-workers, supervisors, subordinates, or individuals who do business with the company. This policy applies to all categories of employees, regardless of title, and applies to relationships inside and outside the workplace. Violations of this policy may result in discipline, up to and including termination of employment.
Example 2. Policy Focusing on Relationships Between Supervisor and Employee. Romantic relationships between supervisors and subordinates are strictly prohibited. If a romantic or sexual relationship between a supervisor and an employee should develop, it shall be the responsibility and mandatory obligation of the supervisor and the employee to promptly disclose the existence of the relationship to human resources or management. Any employee who does not disclose such a supervisory relationship is subject to disciplinary action, up to and including termination. Upon learning of the existence of such a relationship, company management, in its discretion, may alter the work schedules of those involved, transfer one or all parties, or terminate employment of those involved. In other cases where a relationship between employees results in performance issues, even if there is no line of authority or reporting involved, management, at its discretion, may separate the employees by reassignment or alteration of their work schedule, or terminate employment.
Example 3. Non-Fraternization. While the Firm does not wish to interfere with the off-duty conduct and personal conduct of its employees, certain types of off-duty conduct, and relationships may interfere with the Firm’s legitimate business interests. To prevent unwarranted sexual harassment claims, uncomfortable working relationships, morale problems among other employees and even the appearance of impropriety, employees with higher status and/or power are strictly prohibited from fraternizing with employees who occupy a different level of authority, including but not limited to, dating, pursing to date, or pursuing or having romantic sexual relationships.
Any employee who engages in the above conduct must fully and immediately disclose such conduct and the relevant circumstances in writing to [Manager/Human Resources] so that a determination can be made as to whether the relationship presents an actual, perceived, or potential conflict of interest. If an actual, perceived, or potential conflict exists, the Firm may take whatever action it deems appropriate according to the circumstances, up to and including termination of employment. Failure to disclose material facts may lead to disciplinary action, up to and including termination of employment.
Employees in a close personal relationship should refrain from public workplace displays of affection or excessive personal conversation.
This policy shall apply without regard to gender and without regard to the sexual orientation of the participants in a relationship of the kind described.
Require a Relationship Agreement or “Love Contract”
Company’s may require “Love Contracts” to assist in managing the risk of sexual harassment claims stemming from workplace romances. A love contract is an agreement between two employees in a sexual or romantic relationship that governs their behavior in the workplace. Love contacts can be used to address a wide range of issues, including the avoidance of conflicts of interest, maintaining professional behavior, and ensuring the relationship does not adversely impact the parties or co-workers.
Example of a Love Contract
This agreement is made between [Employee 1] and [Employee 2] and the Company:
Purpose: This agreement’s purpose is to address the potential impact our romantic or social relationship may have in the workplace and to maintain a professional working environment free of harassment.
Terms and Conditions:
- This relationship is based on mutual consent and is voluntary.
- We are free to end this relationship at any time.
- We have reviewed the Company’s sexual harassment policies and agree to fully comply with the terms and conditions of those policies.
- We agree to promptly inform the Company (within 3 business days) in the event we break up or are no longer in a romantic relationship.
- If either of us holds a position of authority over the other, we agree to immediately inform our supervisor of the relationship and to recuse ourselves from any decisions or actions that could be perceived as a conflict of interest.
- We agree to maintain professional boundaries in the workplace and to avoid behavior that may be perceived as harassment or discrimination by our coworkers.
- We agree to fully cooperate with any investigations related to this agreement and to take appropriate steps to address any concerns that may arise.
- We understand that this agreement may be revised or terminated at any time with the mutual consent of both parties.
Signatures:
[Employee 1 Name] [Employee 1 Signature] [Date]
[Employee 2 Name] [Employee 2 Signature] [Date]
Maintain Sexual Harassment Policies and Conduct Regular Trainings
Companies that implement sexual harassment policies and regularly conduct harassment trainings will prevent many claims from arising and will also be in a position to manage any such claims that do arise. The law rewards employers that maintain sexual harassment policies, promptly investigate claims, and take appropriate corrective action against the harasser.
In short, there are many legal tools Employers may use to manage workplace romance. If you have any questions about the above the pit falls of falling in love in the workplace, or any employment law matters, feel free to reach out @cbs@clydesnow.com or message me. Clyde Snow’s Labor & Employment Group represents many of Utah’s largest employers and has Labor & Employment lawyers licensed in multiple states, including California, New York, and Washington D.C.