Question: One of my employees gave his co-worker roses on Valentine’s Day. To my surprise, they have been dating for months. I do not have a policy prohibiting workplace romance, but I imagine that office romance can be problematic for an employer. What should I look out for?
Answer: Regulating office romance can be a challenge for employers. Workplace romances are fairly common. Thirty-seven percent of those responding to a 2016 CareerBuilder survey reported having been in an office romance. The survey found that thirty-three of the thirty-seven percent who engaged in workplace romance ended up marrying their workplace sweetheart and finding a renewed commitment to their jobs and increased satisfaction with the work-life balance. However, of the thirty-seven percent who reported a workplace romance, five percent left their jobs after the relationship ended.
In addition to employee turnover, morale problems can arise when employees are dating. For example, 25% of the survey respondents said they dated someone in a higher position. In these situations, co-workers may suddenly perceive, correctly or incorrectly, the subordinate as having a more favorable work schedule or assignments. This appearance of favoritism, although rarely actionable under the law, can result in management issues, low morale, and strained relationships among co-workers.
A more serious risk of workplace romances is a claim of sexual harassment. What one employee perceives as a budding office romance, another may perceive as sexual harassment. Even where the romance is mutual, when it ends, claims of sexual harassment often emerge. California law prohibits harassment, whether the harasser is a supervisor or a co-worker. But when the alleged harassment is by a supervisor, California law provides that the employer is strictly liable for the supervisor’s conduct. For example, if a subordinate ends a relationship with a supervisor, and the supervisor continues to ask the subordinate out or go to the employee’s home, the subordinate may claim sexual harassment. In extreme cases, workplace romances can devolve into restraining orders between employees or charges of sexual assault against an employee.
To avoid liability and morale issues, prudent employers must adopt clear policies covering dating, conflicts of interest, and the prohibition of harassment, discrimination and retaliation in the workplace. Employers can adopt gender-neutral policies that will help guide employees’ behavior in the workplace. Clear communications with employees are important in describing what conduct is not acceptable and why.
Although employers cannot prohibit off-duty romances between co-workers, they can have non-fraternization policies that prohibit dating or romantic relationships between supervisors and subordinates that they supervise. Employers can also have conflict of interest policies that prohibit activities or relationships that create any actual or potential conflicts of interest. These non-fraternization and conflict of interest policies often require employees to disclose if an employee is dating a supervisor, co-worker, or company client. If a conflict exists, employees may be transferred to different jobs or departments to eliminate the conflict of interest. Employers that are required to provide harassment prevention training to their supervisors should also address the issue of workplace romances in the training.
Communicating clear policies to employees in written form and trainings is an important preventive measure an employer can implement to lessen the potential morale issues and liability caused by workplace romances.