Seyfarth Synopsis: Summertime is here. That time of year when wildflowers cover the landscape, birds are singing, and summer love is in the air—and that air may just drift into the workplace. And while a budding relationship seems innocent enough, the thorny reality of potential harassment, quid pro quo, hostile work environment, and other claims stemming from the demise of such a relationship can, and should, be a concern for employers. We have raised Love And The Workplace before, and summer is a perfect time to revisit. Consider adding a review of your policies to your summer checklist.

When Is A Workplace Romance An Employer’s Concern?

It is just an innocent flirtation or romance, right? It is none of their colleagues’ business, right? Yes and no.

Who an employee dates outside of the office is certainly between that person and his or her significant other. If that significant other is a co-worker, however, things could get a little complicated—but they do not have to be unmanageable or impossible.

Employers should be cognizant of the fact that a workplace romance has the potential to distract co-workers and lead to poor morale, allegations of favoritism, and an underlying tension that can leave everyone feeling less than satisfied with their work environment. That behavior is an employer’s concern because the employer wants to ensure their employees are comfortable, happy, and productive.

Choosing policies over policing workplace relationships can be a healthier approach that allows an employer to accommodate a relationship rather than punish employees for otherwise lawful conduct that occurs during nonworking hours. It can also help avoid the same potential of negatively affecting employees’ morale if a workplace relationship is completely precluded (or having the employees just refuse to disclose or lie about the relationship).

To help avoid these pitfalls, employers should proceed with caution and consider having policies in place to help guide employees, and inform them at the outset what is and is not permitted in the workplace. Such policies must strike a balance between respecting employees’ privacy rights and regulating workplace conduct to ensure a positive workplace culture at all times.

What Are The Right Policies For Me?

In California, it’s generally not advisable for employers to simply ban their employees from dating absent a conflict of interest or other concerns. While an employer in California can’t stop love, it can implement policies to help protect its employees and itself. But just as no one wildflower blooms in the field, the most appropriate workplace policies to address inter-office relationships can depend on each workplace environment.

In addition to California-compliant anti-harassment and anti-discrimination policies, some employers choose to implement specific workplace relationship policies. Such policies can include the following:

• Requiring employees to inform management if their relationship lasts longer than a certain period of time.
• Creating a list of examples of acceptable and unacceptable relationship-related behavior in the workplace. This helps keep the focus on workplace behavior and not on the employees’ personal relationship.
• Encouraging employees to bring concerns to management or Human Resources if they feel a workplace romance is negatively affecting their work environment.
• Although employees are entitled to engage in lawful off-duty conduct with each other, California employers can consider a policy that restricts or discourages same-department, managerial-subordinate, and/or employee-contractor/vendor relationships, as well as relationships that involve anyone who determines the terms and conditions of the other employee’s employment. California acknowledges that these relationships can create a conflict of interest. A managerial-subordinate relationship has the most potential to lead to severe sexual harassment or quid pro quo allegations from the subordinate. In addition, other issues can arise from a workplace relationship, including an increased risk of the improper disclosure of confidential information (an issue that may appear in a future blog article). Adding to this, colleagues can also be affected by the relationship and accuse the supervisor of favoritism or creating a hostile work environment.
• “Love contracts” may be an option. However, California employers should be aware that the law limits the enforceability of waivers or releases of a claim under the California Fair Employment and Housing Act. This includes requiring an employee to execute a statement that he or she does not possess any claim or injury against the employer or to sign a document that denies the employee the right to disclose information about unlawful acts in the workplace, including but not limited to sexual harassment.

Workplace Solutions

There are a number of options employers have for being proactive and supportive of healthy relationships in the workplace. This summer, consider refreshing your office relationship policies and perhaps adding some new policies to help protect you and your employees from the legal risks that can arise from a workplace relationship. You all belong among the wildflowers, as Tom Petty might have said. For assistance on reviewing your policies or crafting new ones, please contact your favorite Seyfarth attorney.