On Law


October 14, 2008

November 11, 2008

Should you have love contracts?

"Love contract," is the common phrase that refers to a written confirmation that two employees' romantic relationship is voluntary, and that they both understand and know how to use employer policies that deal with harassment in the workplace.

Many companies expressly forbid managerial level employees from dating or having other close personal relationships with peers and subordinate employees that might lead to sexual harassment claims, conflicts of interest, or potentially clouded judgment. No manager should have trouble choosing between the interests of the organization and the interests of the person with whom the manager has a personal relationship.

Besides forbidding relationships between persons in a direct chain of management, companies are legitimately concerned about favoritism on the one hand and sabotage on the other hand by employees in a position to influence the pay, promotional opportunities, training, work assignments, and other job enhancements of another employee because of an intimate, undisclosed personal relationship.

Real or perceived problems can occur, for example, where a staff manager in finance or human resources consults with a line manager and thereby affects decisions by the manager concerning an employee with whom the staff manager has a romantic relationship.

At the same time, it's important to respect privacy rights of employees who are peers, and who are thus unlikely to affect each other on the job. Attempts at limiting employees' personal lives can be seen as heavy-handed at best, and Orwellian at worst. And in some states, such a rule would be unlawful.

Evenly-enforced policies that forbid dating by persons in a direct reporting chain, and that forbid all employees from engaging in other conduct that constitutes a conflict of interest are generally permissible and upheld by the courts. Even so, some employers today have adopted policies that do not absolutely forbid employees from dating employees whose terms and conditions of employment they could affect so long as they are not in a direct reporting relationship.

Why do some employers now officially allow disclosed, but "regulated" dating relationships between managers and subordinate-level employees, who they do not directly supervise? At least a partial answer is that multiple surveys show that many employees do find love at the workplace. Often managerial level employees eventually know about, and end up condoning, some of these relationships, regardless of what official policies say about the subject.

Inconsistently enforced policies against dating and close personal relationships, may lead to employees being able to claim that they entered into a relationship based on observed cases of other employees having done so. Employers are legitimately concerned about being held liable if a romance sours and one party claims they could not end the relationship without fear of on-the-job harassment, retaliation, and other adverse employment actions by the jilted former love interest.

Moreover, employers are concerned that what might have been perceived by both parties in the beginning as a mutually "welcome," desired romantic relationship may later be recalled in a lawsuit as one that began only because of job-related coercion and harassment.

Besides possible claims by employees who claim that they were coerced into an unwelcome intimate relationship, courts in some states (California for instance) hold that other employees may claim a working environment of severe and pervasive sexual favoritism because of a supervisor's personal relationship with other employees.

Hoffman is the managing partner of the San Diego office of Fisher & Phillips LLP, a national law firm that exclusively represents management in labor and employment matters. Hoffman can be reached at chris.hoffman@sddt.com.


October 14, 2008

November 11, 2008