February 14, 2020 Romance in the Workplace
KEEPING YOU INFORMED…
Valentine’s Day has the unique ability to kindle, or rekindle, social/romantic connections among coworkers. In fact, chances are that at least two employees in your workforce have plans to celebrate this Valentine’s Day together. The following are a few best practices for handling romance in your workplace that can be implemented at any time, even on Valentine’s Day.
“Can’t Help Falling in Love”: Be Proactive About Workplace Romances
Instead of waiting for a “Whole Lotta Love” to impact the office, you should assume that workplace romances happen more often than you think and establish written rules to address them.
One option is an anti-fraternization policy. These tend to be difficult to implement, as they may lend themselves to claims of differential treatment. For example, the policy could prohibit a romantic relationship between coworkers, yet permit close friendships, even though the break-up between friends could impact the workplace as significantly, if not more so, than the romantic break-up.
Another option is to establish a policy requiring employees to confidentially report romantic relationships to the employer (e.g., to Human Resources). This permits the employer to take any necessary actions to avoid potential future liability in case the relationship does not last.
If you are thinking about implementing one or both of these kinds of policies, we recommend that you first speak with us to determine whether, among other things, you will have any bargaining obligations with your union(s) prior to, or as a result of, doing so.
Regardless of whether you already have a policy in place, there are a number of best practices that should be followed when you become aware of a workplace romantic relationship. These include meeting with the employees to confirm that the relationship is consensual, advising them to keep their romance out of the workplace (e.g., you should be working, not flirting), and providing them with copies of the employer’s relevant policies including, but not limited to, anti-harassment, anti-sexual harassment and anti-discrimination policies. Moreover, the supervisor/H.R. personnel who conducts this meeting should maintain a record of what was discussed in case one (or more) of the employees’ story changes from what was initially conveyed to the employer.
“Love on the Brain”: Forbidding Supervisor/Subordinate Relationships
Romantic relationships between subordinates and supervisors are hardly ever a good idea from an employer’s perspective. They pose obvious conflicts of interest and may cause other employees to complain about perceived favoritism. Plus, when/if the relationship ends, it can be difficult for one or both employees to remain part of the workplace. In the worst case scenarios, break-ups can lead to claims of sexual harassment, retaliation or other kinds of litigation.
Aside from the policies that are mentioned in the prior section, employers should take steps to curtail any potential exposure. At a minimum, this should include changing the reporting structure of the employees, if necessary, so that one employee in the relationship is not responsible for the terms/conditions/discipline; etc., of the other. Doing so may help avoid claims of favoritism by other employees. Keep in mind, though, that you should check applicable collective bargaining and other relevant agreements to ensure that they do not contain restrictions on transferring or otherwise changing the terms and conditions of employment for an affected employee(s).
“We Are Never Getting Back Together”: When Good Romance Goes Bad
Office romance may be all fun and games for those involved … until someone decides otherwise. When this happens, the stakes are high for employers, who may be subject to, among other things, a sexual harassment or discrimination claim. Having New York State-compliant anti-sexual harassment, anti-harassment, anti-discrimination and anti-retaliation policies, and regularly training employees about them, is a good way to lay a foundation for a defense against one of these kinds of claims (though this, alone, may not always be legally sufficient).
As you are likely aware by now, there have been many changes to the sexual harassment (and other unlawful harassment) legal landscape over the past couple of years, which have created a number of new obligations for employers. For example, annual anti-sexual harassment training in accordance with New York State’s applicable guidelines is now required annually for current employees. New employees are also required to, at the time of hiring, receive a notice enclosing a copy of your workplace’s anti-sexual harassment policy and the training materials. The State also recommends training new employees as soon as possible. These are just a few examples of the more recent changes in this area; we recommend that you at least annually (re)evaluate your workplace’s sexual harassment prevention policy, training materials and procedures in light of these changes.
Individuals are becoming more likely to report alleged sexual and other misconduct, regardless of when it occurred. Employers should be prepared by taking the following steps:
- Maintain and regularly update an anti-harassment policy that complies with all applicable laws.
- Maintain a record of when the policy was distributed to employees and which/when employees have received sexual harassment prevention training.
- Document any conversations/counseling with employees regarding workplace relationships.
- Establish a deadline by when newly hired employees will be trained.
- Establish a schedule for annually training current employees.
- Train supervisors to recognize and address harassing behaviors.
- Require supervisors to report any potentially harassing behaviors no matter how minor.
- Be ready and able to promptly investigate any allegations of harassment.
- Be prepared for media inquiries.
- Establish a game plan for handling post-investigation workplace issues (e.g., periodic “check-ins” with those involved).
Please do not hesitate to contact Alyssa Zuckerman or any of our other attorneys at (631) 694-2300 if you need assistance updating or drafting your anti-sexual harassment, anti-harassment, anti-discrimination, anti-retaliation or other workplace policies; would like assistance conducting training related to your policies; or have any questions regarding the information contained in this memorandum.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
©Lamb & Barnosky, LLP 2020