This article is part of our ongoing HR Scenario Series, written by our National HR Client Service Manager, Kim Schaff, SHRM-SCP, PHR. In each of these articles, Kim will walk you through a real-life HR scenario, using her expert knowledge and years of experience to break down the pros and cons of various ways this situation could be handled, which option is likely best for you and your business, and all the ins and outs of the rules and regulations that could impact the scenario and your decisions.
HR Scenario
For this HR Scenario, let’s say that in a small office setting there is gossip that two employees are dating. In these situations, there is frequently a feeling among some of the staff that having a couple in such a small business setting is counterproductive.
Excessive public displays of affection might cause other employees to feel uncomfortable, and there may be a worry that the dating employees may excessively look out for each other over other employees through actions such as prioritizing helping each other with work or favoring each other’s ideas or contributions.
In situations like this, could the company potentially adopt a “no relationship” policy in order to remove this conflict of interest, either by ending the relationship or requiring one member of the couple to leave the company?
Response:
In the 2017 edition of CareerBuilder’s annual Valentine’s Day survey, 41% of workers said they’ve dated a co-worker at least once over the course of their career. While workplace romances have always been around, this number is the highest seen on CareerBuilder’s survey since 2007, and we’ve seen a corresponding recent rise in company policies addressing them.
It’s inevitable that co-workers may date one another, but workplace relationships bring potential for increased employer liability in harassment and retaliation claims, especially for a relationship that forms between a supervisor and a subordinate.
Employers have several options when it comes to addressing workplace romances. Now, let’s take a look at three options for you to consider for your small business, their potential pros and cons, and things like compliance and other issues that you need to keep in mind for each when making your decision.
Option #1: Ban workplace relationships completely.
Most employers realize that a ban on romantic relationships is difficult to enforce and just forces employees to keep their relationships secret. However, if an employer does decide to ban romantic relationships in the workplace, careful wording of the policy is critical.
Courts have found that policies which use the word “fraternize,” such as “ABC employer has a ‘non-fraternization’ policy,” without additional explanation, can discourage employees from exercising their Section 7 rights under the National Labor Relations Act (NLRA).
Additionally, in some states, such as California, privacy laws restrict an employer’s ability to regulate employee relationships unless a conflict of interest is involved.
Option #2: Establish workplace agreements regarding relationships.
I’ve even seen a recent trend in establishing “love contracts” or “consensual relationship agreements” for workplace relationships (example attached), especially in California.
This kind of “informed consent” policy and associated agreement document normally:
- Sets forth that the relationship is consensual.
- Affirms that the employees are aware of the company’s policies on sexual harassment and workplace ethics.
It also may state that the pair:
- Won’t engage in favoritism.
- Will maintain professionalism in the workplace.
- Neither will take legal action against the employer or each other if the relationship ends.
The employer gains the benefit of knowing that up to the time the agreement is “signed,” there has been no claimed harassment, and if it develops, the duty to report it is squarely on the shoulders of the involved.
Even with an increase in the number of companies using “love contracts,” their use is not widespread.
Potential issues with these “love contracts” include:
- Some employees regard them as an invasion of privacy.
- They can put HR in an awkward position.
- They don’t always protect against the most problematic romantic relationships.
To download an example of a “consensual relationship agreement,” click the link below:
Joseph L. Beachboard & Ogletree Deakins, Practical Law Labor & Employment:
“Consensual Romance in the Workplace Agreement (Love Contract).”
Please Note: The example linked to above should only be viewed as a general demonstration of a “consensual relationship agreement” or “love contract,” and not a document for official use. These agreements, if used, should be drawn up by a labor and employment law attorney familiar with the relevant jurisdiction’s sexual harassment laws and laws protecting employee privacy.
Option #3: Rely on policy and training to mitigate risk.
This approach is used by the majority of employers, is generally effective, and is considered a best practice in approaching workplace romances. With this approach, there are things to include and remember in your policy and training in order to best mitigate risk and address potential concerns of relationships and dating in the workplace.
Here are four key things that should be part of your policy and training:
1. Conduct Regular Sexual Harassment Training
Expectations should be clearly stated during regular, periodic sexual harassment trainings. This ensures that company policies, expectations, and guidelines are directly and clearly communicated to your employees, and there is no confusion regarding issues of dating in the workplace or sexual harassment.
This is the time to let employees know:
- Office relationships must be kept separate from the work environment.*
- Productivity expectations remain unchanged for everyone.
- Sexual behavior and/or public displays of affection will not be tolerated at work.
*Please Note: During these trainings is also the time to clearly prohibit managers from dating subordinate employees, even if layers of managers separate them.
2. Policies for Managers and Employees in Sensitive or Influential Positions
Expectations should be set that any supervisor, manager, executive, or other company official in a sensitive or influential position must disclose the existence of a romantic or sexual relationship with another co-worker to the employee’s immediate supervisor or HR.
This disclosure enables the company to determine whether a conflict of interest exists and to consider options for resolving the conflict of interest. These options may include reassignment of one of the employees to another department or position, lessening the likelihood of charges of favoritism or special treatment.
3. Be Aware of and Monitor Any Potential Coercion and/or Non-consent
Employers should monitor relationships for signs that they are truly consensual. If a relationship is found to be a result of coercion, the organization should immediately investigate for sexual harassment.
4. Properly Communicate Company Policies
Finally, you need to ensure your company’s policies not only address the issues already discussed, but are also communicated clearly, are easily accessible by your employees, and do not contain any potentially problematic wording that might cause other issues going forward.
It is important to make sure your company policies:
- Are in writing.
- Are accessible through the employee handbook.
- Use language that does not single out opposite-sex partnerships as the norm.
