February 12, 2021 Romance in the Workplace
KEEPING YOU INFORMED…
Since we are all tired of talking and writing about COVID-19, we will address a different kind of “bug,” the love bug. With Valentine’s Day just around the corner, love is on the brain and, probably, in your workplace, even those in which employees are working remotely. With that in mind, the following are some best practices for handling romance in your workplace.
“Talk About Love”: Proactively Address Workplace Romances
With employees spending what might feel like “10,000 Hours” at work, it is not at all surprising that romantic relationships develop among coworkers. Establishing and implementing written rules or policies to address these kinds of relationships will help your employees know what is expected of them and help prevent them from inadvertently breaching protocol “Time After Time.”
For example, you may want to consider implementing an anti-fraternization policy which, in a nutshell, typically prohibits romantic relationships between coworkers or between supervisors and subordinates. It can be effective if properly and consistently enforced. Failure to consistently apply the “rules” among employees, however, may lead to claims of disparate treatment.
As another option, you could instead or, in addition, implement a policy requiring employees to confidentially report romantic relationships when they arise (e.g., to Human Resources). Doing so permits the employer to take necessary actions and avoid potential future liability in case the relationship does not last. Even if the relationship does last, the employer can take appropriate steps to ensure that one party in the relationship is not responsible for the terms and conditions of the other. This type of policy is typically most effective when employees are in a work environment where they feel comfortable with taking the extra step to report their relationship to the employer and “make it official.”
If you would like to explore either of these options, we recommend that you first speak with us to determine, among other things, whether you have any bargaining obligations with your union(s) prior to, or as a result of, establishing one or both of these types of policies.
On a related note, regardless of whether you already have one of these policies in place, there are a number of best practices that should be followed when you become aware of a workplace romance. 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., they are paid to work, not flirt), and providing them with copies of your relevant policies including, but not limited to, your workplace sexual harassment policy and other policies addressing and prohibiting harassment, discrimination and retaliation. In addition, the supervisor/Human Resources personnel who conduct this meeting should maintain a written record of what was discussed in case one (or more) of the employees’ story changes from what was initially conveyed during the meeting.
Your employees continue to be covered by laws prohibiting workplace sexual harassment and your related workplace sexual harassment prevention policy (assuming it complies with applicable law) even when working remotely. If you would like us to review your workplace sexual harassment prevention policy or would like to discuss the related mandatory annual training for your remote/in-person workforce, please contact us.
“You Belong to Me”: Forbidding Supervisor/Subordinate Relationships
Romantic relationships between subordinates and supervisors are, for what are likely obvious reasons, generally inappropriate in the workplace. Among other issues, they can create conflicts of interest when dealing with work-related terms and conditions, may cause other employees to complain about perceived favoritism and may decrease productivity if a personal relationship issue travels with them from home to work. Plus, when/if the relationship ends, there may be claims of supervisor-imposed (and, therefore, management-imposed) sexual harassment, retaliation or other kinds of related potential litigation.
In addition to having (and, perhaps more importantly, disseminating) clear and concise policies addressing (and, in the best-case scenario, prohibiting) this kind of workplace relationship, employers should, as a best practice, take additional steps to limit potential liability. This should include, for example, changing the reporting structure of the romantically-involved employees to the extent necessary so that they do not have a direct reporting relationship with one another. As a result, for example, the supervisor would not be responsible for the subordinate’s assignments, evaluations, discipline; etc. Before doing so, though, you should check any applicable collective bargaining or other agreements to ensure that they do not contain restrictions on changing the affected employees’ terms and conditions of employment. If they do, we recommend that you contact us to discuss alternate ways to address this issue.
“It Wasn’t Me”: When Good Romance Goes Bad
While they may be fun and exciting for a while, some office romances end badly. “When the Party’s Over,” an otherwise personal issue can create significant problems for the workplace. Employers may be subject to, among other things, sexual harassment, discrimination or retaliation claims. Having policies addressing harassment, discrimination and retaliation that comply with applicable law, and regularly training employees on them, is a good step towards limiting your liability when these kinds of claims arise (though this, alone, may not always be legally sufficient). To that end, all employees who work in New York State must, on at least an annual basis, receive workplace sexual harassment prevention training.*
You are likely also aware that individuals are more frequently reporting alleged inappropriate sexual and other misconduct, regardless of when it occurred. You can prepare for these situations in advance by taking the following steps:
- Maintain and regularly update all anti-harassment policies to comply with applicable laws.
- Maintain a record of when the policies were distributed to employees and when each employee received anti-sexual and other harassment prevention training.
- Document conversations with or counseling of employees regarding workplace relationships.
- Establish and implement a deadline by when newly hired employees will be trained.
- Establish and implement a schedule for annually training current employees.
- Train supervisors to recognize and address harassing, discriminatory and retaliatory behaviors.
- Require supervisors to report any potentially harassing behaviors no matter how minor they may appear to be.
- Be prepared to promptly investigate allegations of harassment by reviewing the procedures for an investigation and determining who will be responsible for ensuring compliance with the procedures.
- Be prepared for handling media inquiries.
- Establish a plan for following up on and 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.
Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
© Lamb & Barnosky, LLP 2021
* New employees should be trained as soon as possible and, at the time of hiring, receive a notice enclosing a copy of your workplace sexual harassment prevention policy and training materials.