With people spending more and more of their time at the workplace, some dating among co-workers is inevitable, so the best thing an employer can do is mitigate risk and liability with clear policies and procedures, according to attorneys.
The issue has once again come to the fore because of David Petraeus's resigning last month as director of the CIA after it was revealed he had a romantic relationship with his biographer.
“If the Petraeus scandal had developed 10 to 15 or more years ago, there would not have been the incredible electronic trail to be found that led them to be discovered in the first place,” Richard Meneghello, regional managing partner in the Portland, Ore., office of Fisher & Phillips, told BNA Dec. 4.
When it comes to workplace romantic relationships, Meneghello said, the story has not changed much over the years, it just involves different means of the affairs being discovered or investigated.
With the combination of email and texts being so prevalent, it is undoubtedly harder to get away with carrying on an illicit affair, and it is more likely that any credible investigation will lead to its discovery, he said.
Additionally, social media “just takes it to the next level,” according to Meneghello. “People of a certain generation [find] it nearly impossible to live their life without documenting it on Facebook, Twitter or Instagram,” he said, thus more and more evidence is created that could lead to the revelation of a secret.
Regardless of how they are discovered, workplace romances, and the potential pitfalls that accompany them, are not going away anytime soon.
“I think that it is almost impossible, especially in a larger workforce, to expect that there will never be any dating among employees,” Joseph L. Wood of Houston-based BoyarMiller, told BNA Nov. 29.
Employers should have a policy outlining the company's position with respect to dating, and this policy should be communicated to employees and should be part of staff and management training, Wood said.
While attorneys generally agree that workplace romances cannot be prevented, some suggest that employers should draw the line at supervisor-subordinate pairings.
Dating between supervisors and subordinates should absolutely not be allowed, Meneghello said Dec. 3.
At a minimum, employers should have a written policy that prohibits supervisor-subordinate relationships, Meneghello said, because if the relationship ends badly, it could lead to charges of sexual harassment and retaliation.
Even if the relationship goes well, there could be potential problems if co-workers learn about the relationship, then believe that there is preferential treatment, he said.
The supervisor-subordinate relationship can only be maintained if the supervisor willingly leaves his or her position of authority, and the power differential is dissolved, Meneghello said. It is ill-advised to ask the subordinate in the relationship to change jobs, he added.
Carrie Cheverny, vice president of Fort Lauderdale, Fla.-based AlphaStaff, a provider of HR outsourcing services, told BNA Dec. 3 that managers need to understand the difference between a consensual relationship and a relationship based on fear and authority. Often managers have been promoted from within the company, she said, and are not immediately used to being the boss of their former co-workers. They need to understand that there is a power differential, Cheverny said, and that there are consequences to pursuing a relationship with a subordinate.
Attorneys allowed that employers face fewer pitfalls with romantic relationships between peers, but they still recommended precautionary policies and procedures. For example, co-workers involved romantically should be obliged to report the relationship to the employer.
The employer has to know what they are dealing with, and the obligation is on the employees, or a manager or supervisor of the employees, to disclose the relationship's existence, Cheverny said.
She recommended employers include ramifications for employees who fail to report a romantic relationship with a co-worker, including disciplinary action up to termination.
Possible outcomes after co-workers report a romantic relationship could include the reassignment of one party, or a “love contract,” Cheverny said.
The three attorneys all asserted that so-called love contracts are an effective tool at protecting the employer without strictly prohibiting relationships in the workplace.
Wood explained that a love contract is a piece of paper both individuals in the relationship sign that says they have come forward with their consensual relationship, it does not violate the company's harassment policy, and they promise to waive and release the company from any liability stemming from the relationship.
“There's no magic bullet for [a co-worker relationship] situation,” Meneghello said. Though the relationship could still sour, he said, the love contract absolves the company of dealing with the fallout of a breakup.
All three attorneys also said that the best strategy for employers is to remain proactive. For example, Wood said, harassment policies need to be communicated comprehensively to employees and enforced consistently.
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