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Should Employers Implement a Kiss-and-Tell Policy?

In light of the amount of time spent at work and the close relationships that invariably develop between co-workers, workplace romances seem inevitable. While some will survive through “sickness and in health,” others may not last until “death do us part.” Regardless of the end result, both situations can pose challenges for employers, who must decide how to manage the impact of a workplace romance on employee morale, workplace productivity, and legal liability.

Recent action by a company that dismissed its CEO amid allegations of sexual harassment serves as a reminder of one step employers can take to address romantic relationships in the workplace – implement a policy outlining its expectations for workplace conduct. In an effort to prevent sexual harassment, avoid conflicts of interest, and create a comfortable working environment for its employees, the company implemented two rules that set forth its expectations with respect to workplace romances:

  1. No management-level employee may make sexual advances, welcome or unwelcome, toward any subordinate, regardless of whether the subordinate reports to the management employee, either directly or indirectly.
  2. No employee who has a personal relationship or romantic relationship with another employee may be in a position with any perceived or actual influence over the other's terms and conditions of employment.

The company also requires employees who are involved in a romantic relationship in which one has actual or perceived influence over the other's terms of employment to disclose the relationship to Human Resources so that a determination can be made “whether there is or may be a reasonable concern for favoritism, employee morale, confidentiality, discrimination, security, safety, a conflict of interest, or other business conflict,” and if so, what adjustments should be made to address the concerns (e.g., transfer one of the employees to another department).

With Valentine's Day right around the corner, and the fact love may be in the air, now may be a good time to revisit your organization's fraternization policy. While many view an outright ban on romantic relationships between employees to be unrealistic (although some employers have issued rules to that affect), the policy should, at a minimum, prohibit romantic relationships between a supervisor and a subordinate when the supervisor has direct influence over the subordinate's terms of employment. This would help avoid the greatest risk of liability arising from a workplace romance (or more likely the demise of the romance) – sexual harassment claims.

The policy should also define what conduct is and is not allowed, the potential ramifications for violating the policy, and any disclosure requirements.  Lastly, once the policies have been updated, they should be distributed and training provided so that employees understand the employer's expectations for workplace conduct and the potential ramifications of becoming romantically involved with a co-worker.

If you have questions about your organization's fraternization policies or how to navigate a workplace romance, please contact your Elarbee Thompson attorney, or respond to this email.

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