It is no surprise that many people spend more time at work than engaged in any other activity. It’s no wonder that workplace romances sprout—often bringing grief to HR Managers. In an attempt to curb potential sexual harassment claims, workplace romance policies are instituted sometimes going as far as forbidding office mates from falling in love. As I’m sure you can imagine—those policies don’t work. What are the legal concerns that should be kept in mind when addressing this situation?
- First is the ever-present harassment potential for senior managers to prey on junior workers for sexual favors. The company’s usual sexual and other harassment policy generally suffices to protect employees in this situation.
- What about the senior manager claiming to be (or actually thinking they are) in love with a subordinate? Again, the usual harassment policy should protect against barrages of dinner date requests and other advances that may be unwanted by the more junior of the pair.
- Then there is the situation where the feeling is mutual. As referenced above, trying to stop this is generally futile. In this situation the company would be prudent to have a policy requiring the reporting of workplace romantic relationships for the purpose of preventing conflicts of interest and the appearance (or occurrence) of impropriety. More specifically, the policy would, in the least restrictive arrangement, prohibit people who are married, related, or involved in a romantic (or sexual) relationship from being in reporting relationships, or in any reporting chain or position that might make compensation, promotion or other employment decisions about other. In the most restrictive model, the company would prohibit anyone from working for it that is married to, related to, or in a romantic relationship with, anyone else in the company. If you company is considering implementing such a policy—be sure you really mean it.
- Even in the less restrictive policy, the company procedure should be clear. For example, if a romantic relationship arises between direct reports, is the company going to choose which one would transfer to another position or which one will be terminated if no open position is available, or is the company going to allow the couple to determine who will stay and who will go? Make sure that the policy not only clearly sets forth the procedure the company intends to utilize, but that the procedure selected is one the company can (and would) actually apply. It can be detrimental for a company to implement a policy it has no intention of enforcing.
- If a relationship develops at work and is reported, the company should consider having both parties sign a memo reporting the relationship, acknowledging the requirement to avoid conflicts and the appearance of impropriety, and acknowledging that the relationship is consensual. While not definitive evidence that the relationship was not coerced should one of the two later claim to have been forced into the relationship, such a memo can be helpful . . . provided that each employee was met with separately to obtain their signatures with two company representatives present who would attest the signature was not coerced. If you can’t imagine sitting with employees to get such signatures, think twice before implementing a relationship reporting requirement.
- Keep in mind, however, that the hiring of relatives (nepotism) is generally not illegal. Therefore, if the boss wants to hire his nephew or cousin or sister or wife, and then favors that employee over others, unless a state specifically has a law to the contrary, no employee is going to have a claim based on that behavior—even if the employee lost her job to the wife.
- If your company is publically traded and governed by Sarbanes-Oxley, however, there may be requirements to report the relationship as a potential conflict of interest.
- When it comes to the public sector, different rules apply and most states have anti-nepotism laws. Even some of those laws state that the intention was not to prevent relatives from working together, but to avoid any conflicts of interest.
In the alternative, some companies just implement conflicts of interest policies—and leave it at that, letting relationships flourish as they will. I have found in my practice, however, that, as with many things HR, a company does not need this type of policy—until it needs it and then it is too late.
