February 12, 2014 Romance in the Workplace
KEEPING YOU INFORMED…
With Valentine’s Day around the corner and love in the air, it is only fitting that we offer an overview of the potential legal issues that may arise because of workplace romances, as well as some of the best practices that employers should consider adopting when dealing with love-struck employees.
Given human nature and the amount of time people spend together at work, it is not surprising that love often blooms in the workplace. However, just as quickly as relationships develop, they can also develop into sources of distraction or discomfort, which can have both an adverse impact on the work environment and expose the employer to a host of potential legal liability.
A 2013 survey conducted by the Society for Human Resource Managers (“SHRM”) found that 67% of human resource professionals reported that incidences of workplace romances in their organizations have remained the same since 2005. Twice as many employers within that same time period have nevertheless adopted written or verbal policies designed to address workplace romance issues.
Love Is in the Air
Perhaps the most immediate issue that can arise from a workplace romance is the attendant disruption caused by romantically involved employees failing to distinguish between personal and work time; i.e., when personal phone calls, text messages, e-mails and the like are exchanged during working hours and adversely impact upon productivity and the delivery of services. When this occurs, employees should be directed to meet with their supervisors and advised that failure to keep their romance out of the workplace could lead to reassignment or even discipline. If the purpose of the meeting is to investigate whether the employees have permitted their relationship to interfere with work, either or both of the employees may have the right pursuant to statute and/or a collective bargaining agreement, to have a union representative present at the meeting. Since this right arises only in certain factual circumstances, be sure to check with us before proceeding.
The Power of Love
Another common issue that arises from workplace romances is a claim of favoritism; i.e. that an employee was wrongfully passed over for an assignment or promotion in favor of another employee’s significant other or, conversely, claims that one employee engaged in sexual harassment by denying his/her significant other the same assignment or promotion. The potential for these types of claims to arise is only compounded when the relationship is between a supervisor and his/her direct subordinate. Favoritism, even if resulting from a romantic, consensual relationship, is not per se illegal. It can nonetheless be disruptive to the work environment and may lead to claims of sexual harassment, contract violation; etc.
In order to limit these types of claims, employers may consider implementing an anti-nepotism policy that precludes employees related by blood or marriage from working in a supervisor/supervisee capacity, or an anti-fraternization policy that prohibits employees from maintaining certain kinds of “personal-plus”-type relationships with each another. Indeed, SHRM’s survey found that in 2013, approximately 99% of human resource professionals reported that their organizations prohibited relationships between a supervisor and his/her direct subordinate, an approximate 19% increase since 2005. If you are considering adopting or modifying an anti-nepotism and/or anti-fraternization policy, we recommend that you contact us to determine whether you will first need to negotiate with your union(s) over the implementation of these policies.
Breaking Up Is Hard to Do
The potential for disruption in the workplace and liability for the employer only increases when employees’ romantic relationships “sour.” Following a “break-up,” an employee may file a claim of sexual harassment (quid pro quo or hostile work environment), discrimination, negligent hiring, negligent supervision or worse. One of an employer’s best defenses to these types of claims is to maintain and consistently apply all relevant policies, including the anti-harassment policy. For this reason, when an employer first learns of a potential romance, instead of electing not to take any action, the employer may consider taking a more “hands on” approach. This may include meeting with the employees to verify the existence of the relationship, confirming that the relationship is consensual, advising them to keep their romance out of the workplace, and providing them with copies of the employer’s anti-harassment policy and, if available, its anti-nepotism and/or anti-fraternization policies. Moreover, it is also advisable that the supervisor who conducts this meeting maintain a record of what was discussed in case recollections should differ down the road.
The anti-harassment policy that is provided should describe the steps an employee should take if the employee believes he/she is being harassed or discriminated against. Although it is recommended that employees be provided with a copy of the anti-harassment policy when the existence of the relationship is first learned, it is also a best practice to ensure that all employees are provided with a copy when they are first hired and annually thereafter, and also requiring them to sign an acknowledgement of their receipt. Furthermore, regular training of an employer’s supervisors on how to identify potential harassment and how to take appropriate action is an additional best practice that may be considered. Whenever a complaint of harassment is made, the employer should investigate the allegations and take appropriate remedial action where necessary. Failure to do so may result in an employer being found to have condoned the harasser’s improper conduct.
Despite its best efforts, an employer may still find itself defending a lawsuit arising from a workplace romance. One of the more common, but certainly not the only, type of lawsuits is one alleging sexual harassment. As a general rule, the United States Supreme Court has held that sexual harassment by a supervisor is actionable. An employer may be held liable where its own negligence caused the harassment. For example, an employer may be liable for a hostile work environment; i.e., one in which the “bad things” that happened were caused by a supervisor with immediate (or successively higher) authority over the employee and caused a tangible negative impact upon the employee. If no tangible employment action was taken against the employee, the U.S. Supreme Court has stated that the existence and effective implementation of an anti-harassment policy and/or reporting procedure is one of the ways in which an employer may demonstrate that it exercised reasonable care and so should not be held liable for its employee’s bad conduct.
The key take away from all of this is that the most effective way for an employer to try to reduce these types of issues and problems is to announce in advance the acceptable parameters pursuant to which romantic relationships will be permitted in the workplace. By giving everyone advance notice of the work-related course of action to be taken when romantic relationships arise through a combination of common sense actions and appropriately tailored and implemented policies, employers will best be able to navigate the myriad of issues that may potentially arise and seek to reduce their potential liability.
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 2014
1. See Dana Wilkie, Forbidden Love: Workplace-Romance Policies Now Stricter, SHRM, Sept. 24, 2013, http://www.shrm.org/hrdisciplines/employeerelations/articles/Pages/Forbidden-Love-Workplace-Romance-Policies-Stricter.aspx.