Compliance/Best Practices Employment Law Legal Topics

Cupid in the Office

Office romance is an inevitability, and sometimes a headache for employers. Prohibiting office relationships is virtually impossible, but the right policy and “love contract” can protect at least the employer, even if it can’t protect its employees from broken hearts.

As succinctly stated by on how employers should handle workplace romance,

Don’t establish a policy prohibiting it, and don’t ignore gossip that it exists. Do provide sexual harassment training—and buy employment liability insurance.

Employers have a legitimate concern about the fine line between voluntary romantic relationships and sexual harassment. The line is sometimes crossed after one party unilaterally ends what began as a consensual romantic relationship. This distinction and the potential problems associated with intracompany dating should definitely be part of management training on sexual harassment.

Instead of outright prohibitions against all workplace dating, employers can use an evenly-enforced policy that forbids dating by persons in a direct reporting chain and that forbids all employees from engaging in conduct that constitutes a conflict of interest.

Alternatively, a policy could discourage dating and other close personal relationships, and require disclosure of such a relationship to the employer. By requiring disclosure, the employer can take steps to protect itself and give other employees some level of assurance that processes are in place to prevent harassment, favoritism, or retaliation because of personal relationships.

Requiring disclosure of such relationships also gives the employer the opportunity to require the parties to enter a so-called “love contract.” A love contract is a written confirmation that two employees’ romantic relationship is voluntary and that they both understand and know how to use their employer’s policies that forbid harassment in the workplace and provide mechanisms for reporting and solving problems.

Employer should weigh the advantages and disadvantages of these policies and contracts before adopting them, because problems with enforcement are almost certain to arise.

And don’t forget about the potential privacy issues. Employers always need to be careful when restricting employees’ off-duty associations. For example, an employee fired for dating the manager of a business competitor after being requested by the employer to end the relationship successfully pursued a claim for a violation of her privacy rights. See Rulon-Miller v IBM Corp. (1984) 162 CA3d 241, 208 CR 524. In that case, the company had no express policy prohibiting the dating of competitors. In another case, Barbee v Household Auto. Fin. Corp. (2003) 113 CA4th 525, 533, 6 CR3d 406, an express policy requiring any supervisor who wanted to maintain an intimate relationship with a subordinate to bring the matter to management’s attention made all the difference.  The court held that this this “advance notice” diminished any expectation of privacy the supervisor might have had in pursuing an intimate relationship with his subordinate.

So, when love is in the office air, employers should consider using policies to try to protect itself and its employees.

For more on dealing with workplace romance issues, including a sample “love contract,” check out CEB’s Advising California Employers and Employees. Workplace privacy issues are covered in chapter 8 of our book Privacy Compliance and Litigation in California.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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