The Birds and the Bees

May 2015

By: Walter J. Liszka, Esq.

In springtime, it is a very good time for employers to give consideration of how to manage “office romances” and avoid potential liability that may result from them.  Remember that in the current and constantly changing work environment, these “office romances” may not just involve the traditional male and female (they may involve two members of the same sex), but all office romances must be treated the same way.

Over the large number of years that the author has practiced labor and employment law, I have seen numerous employers attempt to eradicate this problem of office romances by an outright ban on those relationships.  In my experience in any workplace, “office romance” relationships are inevitable, regardless of the policies of the employer.  To have a policy that outright bans these relationships is not only unrealistic but totally ineffective – such policies merely force the employees to go “underground” and hide their relationship and lie to their employer and fellow employees to cover their tracks.  This leads to a less productive and unhappy workforce.  If you have a policy banning any relationships, once you as the employer become aware of these relationships (rest assured that your employee staff has been aware of the relationship for a lengthy period of time prior to your knowledge), you have to turn around and fire both employees.  If you do not fire them, you give the clear impression that “you pick and choose” when to enforce rules – never a good impression for your employees and a potential morale killer!  This is a completely backward situation and must be avoided.  

Here are a few suggestions for dealing with “the birds and the bees”:

1. Rather than banning the workplace relationships, establish a policy that encourages employees to disclose these office relationships but prohibits them when there is a supervisor – subordinate relationship.  Once the workplace relationship is disclosed, the employer can make very clear to the involved employees how they are to behave in the workplace (leave personal issues for non-work hours; no public displays of affection in the work place; etc.). Once a relationship is in fact disclosed, there are potentially heightened legal risks – potential sexual harassment claims if the relationship should go south or complaints from other employees with regard to perceived favoritism especially in supervisor-subordinate situations.  As a result, the employer must view its workforce needs to determine if a transfer or schedule change for either or both employees is appropriate.   If such an accommodation cannot be made, the involved employees should be advised that they will have a brief period of time to determine who is going to stay and who is going to leave.  Such drastic action is necessary because if a relationship between a supervisor/subordinate goes south, there is an absolute liability for the employer with regard to any and all actions taken by the supervisor vis-à-vis the subordinate.  This will enhance any sexual harassment claim because the employer will be held strictly liable for the actions of its supervisor.
   
2. The author first became aware of this concept arising in the State of California – no surprise.  Some employers may want to take the additional step of requiring the involved employees to enter into a Consensual Relationship Agreement or, as brought to the attention to the author in California, a “love contract.”  The aim or intent of the “love contract” is to create additional evidence to limit the employer’s liability in the event that the romantic relationship sours.  It is somewhat analogous to a prenuptial agreement but, instead of dividing the marital assets ahead of time, it protects the employer and provides that if or when the relationship goes south, neither employee will blame the company and further establishes that both employees acknowledge that their relationship is voluntary and without any type of coercion or duress.  It also requires them to agree that they will not engage in any conduct that will affect their work performance and/or obligations to the business (it is a good idea to also put in that if, in fact, their work performance or obligations to the employer are affected by the relationship, they are subject to discipline).  Also remind them of the company’s anti-harassment and anti-discrimination policies (it is suggested that these polices be set forth verbatim in the “love contract”).  While the author is not convinced that an arbitration clause is appropriate for the resolution of any all problems arising under the love contract, I give deference to the employer regarding this matter.

In closing, I strongly recommend that all employers consider polices that require full disclosure of personal romantic relationships and, just as importantly, update their anti-discrimination and anti-harassment policies to cover this situation. 

 

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.