Swipe Left to Avoid Liability: Policing Dating Apps in the Workplace

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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According to a 2015 survey, nearly two-thirds of people in the United States and over 2 billion people worldwide own smartphones. For some smartphone users, their phones are their only avenue of access to the Internet. Alongside the rapid spread of mobile devices is the increase in the number of people using online dating websites. Current studies show that 22 percent of 25-to-34 year olds use online dating sites and apps.

It stands to reason that at least some employees are using their personal smartphones or company-provided devices (smartphones, laptops, tablets, etc.) to access dating sites while at work. This situation presents myriad concerns for employers, from the risk of data loss to privacy issues to the possibility of harassment liability. It doesn’t help that dating apps alert users to other users within the same geographic location—a feature that puts employers at risk of coworkers discovering one another as potential romantic matches. Worse yet, a supervisor using such a dating app may come across the matched profile of a subordinate employee. The situation is freighted with sexual harassment risk. What is a love-wary employer to do? Here are three considerations that employers should keep in mind and the potential sexual harassment issues that could arise in this new age of the mobile dating workforce.

1.     Monitoring Company-Provided Smartphones

Employers that provide smartphones to employees probably already have in place policies governing how employees may use those devices, given employers’ strong interest in protecting company equipment and data (including proprietary, confidential, and personal business-related information). In addition, to ward off potential sexual harassment issues, employers will probably want to ensure their mobile device policies prohibit or restrict employees from downloading apps that are not business related. Employers must also consider the risks involved when employees use their company-provided devices before or after working hours and outside of the workplace. Employers should educate their employees on these policies, make their expectations explicit, and, importantly, make sure that employees are aware of whether and to what extent the employer is monitoring the device.

2.     BYOD Policies

Employers with bring-your-own-device (BYOD) programs face a number of issues. BYOD programs allow employees to use their own mobile devices for work-related purposes—for example, to stay connected to, access data from, or complete tasks for their employers. While BYOD programs have their advantages (from the standpoint of increased productivity and morale), they also bring privacy and security challenges. From an employee’s perspective, he or she is merely using his or her own device to access apps that he or she has paid for and downloaded. Employers would thus need to be careful in any attempts to monitor the information, apps, and data that are on such devices. The difficulty of balancing employees’ privacy with employers’ need to maintain a harassment-free workplace makes BYOD programs too much work for some employers. Nevertheless, if the benefits of a BYOD program outweigh its costs, employers should make sure to caution employees on how they may use their devices during working hours and while in the workplace.

3.     Workplace Romance Policies and Love Contracts

A 2015 survey found that 37 percent of workers had dated coworkers (and 25 percent of those workers had dated an individual in management who was, in some cases, their supervisor). Given the risks, employers should consider implementing policies, in addition to their sexual harassment policy, outlining expectations of employee conduct with regard to romantic relationships with coworkers (and perhaps even romantic relationships with third-party individuals such as employees of vendors). Employers may decide to prohibit these relationships altogether, or just those between workers and their supervisors. Or employers may instead outline the situations in which such relationships would be permissible—for example, between employees in different departments or on different campuses.

The last resource in an employer’s arsenal is the “love contract”—an agreement signed by employees engaged in a romantic relationship that acknowledges that their relationship is consensual and reminds them of the company’s sexual harassment policy and the employer’s expectations as to appropriate behavior in the workplace.

With a bit of foresight and implementation of sound policies, employers should be able to keep the new digital textual feelings out of the workplace.

For a detailed discussion of the numerous challenges and risks presented by workplace relationships, including favoritism, sexual harassment claims, and disruptive office behavior, join us for our upcoming webinar, “Don’t Go Breaking My Heart: Best Practices for Managing Workplace Romance.” Our speakers, Denise Cotter Villani (shareholder, Dallas) and Donald D. Gamburg (shareholder, Philadelphia) will also discuss what should employers do to avoid potential fallout from office romances and how companies can dodge Valentine’s Day disasters.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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