Mitch Baker, The Daily Record Newswire
This Valentine’s Day, some employees may be celebrating the fact that they’ve found romance at the office. Love may be a wonderful thing, but in the workplace it can put a company at risk.
Two romantically involved employees can create a variety of workplace challenges. For example, if one is a manager and the other is a subordinate, the obvious concerns are potential conflicts of interest, or favoritism and clouded judgment.
And regardless of the employees’ position on the corporate ladder, employers must prepare for the potential ramifications of a less-than-amicable future breakup. After a split, one person may redefine as sexual harassment behavior that he or she previously welcomed. If a lawsuit results, the company faces attorney fees, negative publicity and workplace disruption.
Flirting with disaster
Employers should take these proactive steps to insulate themselves from the liability that can arise from such relationships:
• Update the company’s harassment policy. Distribute it to all employees upon hire and keep a signed acknowledgment-of-receipt form in each employee’s file.
• Consider implementing a policy that discourages dating between co-workers and forbids it among supervisors and subordinates with a direct reporting relationship.
• Require employees who are dating to disclose the relationship to a company official. By requiring disclosure and publicizing the requirement, the company gives other employees some assurance that processes are in place to prevent harassment, favoritism or retaliation due to personal relationships.
• Use “love contracts” that document in writing the disclosures and acknowledgments from employees involved in a workplace romance.
Contracting love
If love blossoms at work — and surveys show that it often does — employers can require the two employees involved to sign a written confirmation that their relationship is voluntary, and that they both understand and agree to abide by company policies that deal with harassment in the workplace.
These so-called love contracts can protect an employer from liability for harassment and retaliation claims when workplace romances go south. A typical love contract confirms that neither party harassed or threatened the other to enter into the relationship and that neither employee feels compelled to maintain the relationship to retain his or her job or to receive employment opportunities or benefits of any kind.
Love contracts also may include:
• Both parties’ acknowledgment of their understanding that either one may terminate the relationship at any time without any adverse employment consequence.
• Both parties’ acknowledgment that neither will take adverse action against the other, nor will they engage in any form of favoritism or preferential treatment for the other in connection with their employment.
• Each person’s affirmation that they will not allow their personal relationship to interfere with their job performance.
• An agreement from the romantically linked employees that they will not engage in workplace conduct that other employees could perceive as intimate physical conduct, such as kissing or hugging.
• An acknowledgment that all computers, telephone equipment, email and voice mail systems are company property and may be accessed by the employer at any time without prior notice to individuals who use them.
• An agreement that, if the employees have a future dispute with each other or the company, they will resolve it through confidential, binding arbitration rather than through the court system.
Whether the document is an enforceable contract doesn’t matter and is almost beside the point. The real strength of a love contract lies in the nature of the acknowledgments made. It shows that the employer took affirmative steps to maintain a workplace free from sexual harassment and retaliation and serves as powerful evidence that, at least at the time of execution, the relationship was consensual.
Finally, it reaffirms that both employees are aware of the existence of a policy prohibiting sexual harassment, discrimination, retaliation and their obligation to abide by it.
As with many other steps an employer can take, a love contract can be a strong deterrent to employee claims, but it will not prevent all future litigation arising out of a workplace relationship.
What it does do is lay the groundwork for a solid defense should a lawsuit develop.
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Mitch Baker is the managing partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at mbaker@laborlawyers.com or 503-242-4262.
