Employers are more likely to find themselves wallowing in a bed of thorns than a bed of roses when they try to prevent romantic relationships in the workplace.
That was the message at a packed Nov. 10 session of the American Bar Association’s annual Labor and Employment Law Section conference. A panel of attorneys offered their advice on avoiding sexual harassment and other claims that can arise from office romances gone bad and crafting workplace policies on non-fraternization that reflect today’s dating culture.
Given that it’s not unusual for employees to consider their workplace peers, their bosses or subordinates, and their company’s clients or vendors as potential mates, it’s extremely unlikely any policy will be able to prevent “forbidden love,” the panelists agreed.
Ask, But Don’t Tell?
An overly strict policy requiring the disclosure of work-related romantic relationships actually could backfire, as it’s unlikely that employees will come forward with this sensitive information and risk losing their job or having to end what they consider a valued relationship, said Hope Singer of the labor law firm Bush Gottlieb in Glendale, Calif.
If an employer seeks to rely on surveillance, such as CCTV, to determine if an employee is engaging in conduct that violates a non-fraternization policy, it could lead to issues under federal wiretap laws, Pennsylvania attorney Scott Pollins said.
If the affair is being conducted outside of the workplace, some states have laws limiting adverse action against an employee for legal off-duty conduct, Pollins added. And there may be difficulties enforcing a restrictive covenant against an employee who was terminated as a result of an affair.
“In addition to state laws, there’s the practical implication—you don’t want to lose good employees when they have valuable relationships with your clients,” said Kimberly Geisler of Scott Dukes & Geisler.
Client Relationships Cause Concern
If an employee’s relationship with the employee of a client crosses the line, however, it raises a myriad of concerns, such as violation of confidentiality provisions, the potential for conflict of interest if litigation arises between the companies, and concerns by other clients of more favorable treatment, Geisler said.
Employers have a clear business justification for policies that restrict relationships between employees and their clients and vendors, said Katie Bunch, an in-house counsel with JPMorgan Chase.
She said an employer’s policy should be crafted around specific issues that can arise from office relationships, such as conflict of interest, favoritism, and sexual harassment, rather than the actual conduct.
In addition, if a policy calls for terminating an employee for failing to disclose an improper romantic relationship, “it could land an employer in hot water” in some circuits, she said. Another approach is to allow for reassignment or transfer of the employee, she suggested.
In cases of heterosexual co-worker relationships, “discipline for both the male and female must be equal or there’s almost automatically a sex discrimination claim,” Pollins said.
Union May Be Involved
If a union represents both of the romantic partners who have been disciplined for violating a workplace rule on dating, there are additional considerations that come into play due to the union’s duty of fair representation, Singer said.
To avoid the appearance of collusion or favoritism, the union should bifurcate the cases, conducting separate investigations and assigning different representatives to each individual. Two attorneys should be retained if the grievances go to arbitration.
As with other policies regulating workplace conduct, Bunch said, non-fraternization policies should be communicated as part of managers’ training so they’re aware of how to appropriately handle conflicts that can arise from office romances.
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