Valentine’s Day is here, and office romances are either casting in the air, already afloat, or over and, in any event, likely the subject of the latest office gossip. In honor of this holiday, this blog explains why employers should have a policy on romantic workplace relationships and what it should include.

What fishing?

Some companies have no policy. This is unnecessarily risky. Policies set expectations, provide directives, and, as detailed below, protect employers and employees.

No fishing. Ever.

Other companies have a policy purporting to ban romantic workplace relationships. It should come as no surprise that these policies do not stop relationships from happening. Instead, they merely encourage secrecy and leave employers and employees facing the same risks as having no policy.

Fishing with a license.

The better practice is for employers to address romantic workplace relationships by having a policy.

Identify. The policy should address relationships that create a conflict of interest—romantic workplace relationships between subordinates and supervisors. Relationships between people in these roles is a conflict of interest for the supervising employee because they create an incentive for favoritism and preferential treatment toward the subordinate employee. Even if this does not occur, there is typically the perception this is happening and this perception—whether true or not—causes negative effects, ranging from decreased engagement and productivity to outright conflict.

Disclose. The policy should require disclosure. When a subordinate and supervisor are in a relationship, they should be required to disclose it to management or human resources. This requirement is not so the employer can take punitive action. It is necessary so the employer can evaluate and address the conflict of interest. But, if a relationship causes problems in the workplace and the employees involved failed to disclose it, their failure provides an additional ground for discipline.

Find solutions. The steps an employer takes to address conflicts of interest must be carefully designed to avoid unfair or unequal treatment and must be thoughtfully tailored to the employer’s size and corporate structure. Sometimes this is straightforward. In large companies with multiple worksites, one or both employees can be relocated. In smaller companies with only one worksite, one or both employees can be reassigned to different departments or teams. Often it is a challenge to resolve these conflict of interest issues. But, as with most human resources challenges, addressing them directly is the best approach to quickly, fairly, and lawfully identifying and implementing viable options.

Some employers require employees in a romantic relationship to sign contracts disclosing the relationship and affirming it is consensual. The contracts for subordinates and their supervisors will contain different terms, but both will affirm knowledge of the employer’s policy against harassment and retaliation. Such agreements often contain waivers of past and future claims by the employees in the relationship, but employers should be mindful that waivers of future claims may be unenforceable.

Well-crafted policies are typically welcomed by both employers and employees. Employers like them because they promote positive, productive work environments and help the company avoid the wide variety of claims arising in this context (i.e., sexual harassment, sexual discrimination, disparate treatment, hostile work environment, and favorable treatment). Employees prefer them because they promote fairness and equal treatment.

All companies need a policy on romantic workplace relationships, and it should be appropriately tailored to the company’s size, structure, and needs. Akerman wishes you a Happy Valentine’s Day.