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Feb. 2 — Valentine's Day brings out the romantic in everyone, even when they're at work; it also serves as a stark reminder that romance and work can be a combustible pairing.
With Valentine's Day nearing, companies should remind employees of professional boundaries, attorneys and human resources consultants told Bloomberg BNA.
Moreover, employers should make special note of appropriate Valentine's Day behavior, a management-side attorney said. Lynn Lieber, managing partner at San Francisco-based Lieber Lawyers, told Bloomberg BNA Feb. 1 that Valentine's Day can be a time when defenses and boundaries in the workplace come down.
“It might seem OK to give someone a Valentine's Day card or bring them candy or flowers, which we all did when we were in grade school, but it is very different when someone does that in the workplace,” she said.
Employers should use the occasion to remind employees of workplace policies on co-worker relationships and sexual harassment, Lieber said.
What seems like innocent Valentine's Day behavior “can look very different when you take that out of context—which is what a plaintiff's attorney would do,” she said.
“I always think it's a good idea to remind employees about their professional boundaries,” Lieber said. “That's where a lot of problems in the workplace start—when someone is not held to a professional standard—and starts asking a co-worker, supervisor, subordinate or whoever it may be personal information like ‘what's your husband doing for you [on Valentine's Day]?' That's opening the door to a more personal side that can then be used against you.”
Beyond Valentine's Day, workplace romances are prevalent, and if not properly handled, can be a concern for employers.
CareerBuilder, the jobs and employment website, conducts an annual office romance survey, with the 2016 survey due to be released Feb. 11. The 2015 survey found that more than one-third (37 percent) of employees have dated a co-worker, and 30 percent of office romances have led to marriage.
Rosemary Haefner, vice president of human resources at CareerBuilder, told Bloomberg BNA Feb. 1 that the firm tends to see similar survey results each year.
“Based on the 2015 study, among employees who have had an office romance, most say their office romance began at happy hour (12 percent), followed by late nights on the job (11 percent), lunches (11 percent) and chance meetings outside of work (10 percent),” she said.
According to Haefner, this year's survey investigated whether employees know their company’s policy on co-worker dating. But one area the firm hasn't explored is the reason office paramours break up. “We haven’t asked survey respondents how or why [office romances] end, but we do know that last year’s survey found that 5 percent of workers who have had an office romance say they have left a job because of an office relationship gone sour,” Haefner said.
“It might seem OK to give someone a Valentine's Day card or bring them candy or flowers, which we all did when we were in grade school, but it is very different when someone does that in the workplace,” attorney Lynn Lieber told Bloomberg BNA.
Jay Starkman, chief executive officer of Engage, a Florida-based professional employer organization that offers HR, benefits and payroll services to small and mid-sized companies, told Bloomberg BNA Jan. 27 that although there may be a “romantic justification” for some relationships between employees, ultimately they can cause employer liability.
“The problem is not the relationship itself, the big problem can be the percentage of relationships that don't work out,” he said.
Starkman, who began his career as an attorney specializing in employment and commercial law, said blanket policies against co-worker fraternizing are “nonsense.”
Co-worker romances “are going to happen; what you want is to make sure that they're not going to, in any way, put the company at risk,” he said.
To avoid liability when a romance fizzles, employers should never allow dating between a supervisor and subordinate, he said. Also, employers should make sure that any workplace romantic relationship is communicated to HR “so there is some record and somebody objective that ensures there's nothing innate to the relationship that could put the company at risk,” Starkman explained.
An employer can establish whatever dating rules it wants, he said, “but it's important to be uniform in the way you deal with it.” A relationship between two employees who don't work directly with each other shouldn't pose any problems for an employer, Starkman said. If such employees didn't disclose their relationship to the HR department, he said, “I don't think you fire anybody [over that]. You can give warnings, but if you find out someone has broken a rule you have to act upon it, otherwise you get accused of selective enforcement.”
According to Lieber, if two co-workers fraternize away from the office, there usually is nothing violating employer policy. However, if it's a supervisor-subordinate situation, “that automatically raises the stakes,” she said.
To shield themselves from liability against potential harassment claims stemming from an office romance gone bad, Lieber said, some companies have employees who are dating co-workers sign an informed consent agreement that requires them to state in writing that they are engaged in a consensual relationship—typically called a “love contract” or “cupid contract.”
“It's an acknowledgement that this behavior is welcomed by [the employee] and if it is not welcomed, the employee will notify the employer,” Lieber said.
It's prudent for employers to establish something in writing that acknowledges that the romantic relationship between employees is consensual, she said. Some companies ask HR to periodically check in with dating employees to see if the romantic behavior is still welcome, Lieber added, “although that can be dicey” and can put employers in an awkward situation.
She said a notice that says something such as “any behavior you engage in with your co-worker is consensual and is welcome” is a good start.
To accompany that written acknowledgment, Lieber advised that the dating employees be given a copy of the company's policy describing unlawful harassment, thereby letting them know that at any time if the relationship becomes unwelcome, they should report it. “That way the employer is on notice if the nature of the relationship changes,” she said.
“I think it's strong evidence,” Lieber said. “I think it really shows good faith that the employer continually tried to establish a link with the employee to give them some reporting mechanism.”
It also can potentially help ease any anxiety an employee might have around telling the company that the relationship is no longer consensual, she added.
“You can have these no fraternization policies but practically speaking, we are going to date and have personal relationships with people we work with; you can't stop someone from doing that,” Lieber said. “You can stop it if it's a supervisor and subordinate, but employee to employee—that's going to happen. Unfortunately the vast majority of those relationships don't work,” she said, and the employees involved have to continue working with each other.
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