United States: Love At Work: Romance Through Contract

Last Updated: February 16 2016
Article by L. Julius M. Turman

As we prepare to celebrate our national day of love and embrace the spirit of St. Valentine that is descending everywhere, employment lawyers have one thing on their minds – Managing Workplace Romances! From out and out prohibition, to managers who look the other way when there's an occasional "cuddle-n-kiss" in the supply closet, the risk of liability for relationships at work is a real threat. Despite company tactics to thwart liability, romance at work is not fading, but it is ever-present and growing stronger. Companies need a practical approach to dealing with modern views toward inter-office relationships, and the fallout from them that can ensue. Whether the question is "want to get a drink after work" or a more modern crude expression, we recommend the following step-by-step approach from the initial ask and response:

Step One – Get With the Times: By no means do we intend this article to encourage workplace romances, as they are a huge distraction to both the participants and third-party co-workers who spend valuable time gossiping and spreading rumors, while feeling dissatisfied and distrustful of the lovebirds. Even more troubling, such corporate connections can lead to sexual harassment, retaliation and other claims of unlawful acts.

But anyone who thinks that romance at work can be prevented needs a reality check. The times we live in encourage freedom of expression and public acceptance of individuality of one’s whole self and being. Open celebration of one’s race, gender and/or sexual orientation often benefits an employer by means of greater creativity and productivity. Love at work was once taboo, but it is no longer, as modern research by companies such as leading work-life programs provider Workplace Options of Raleigh, N.C., reports that 71 percent of employees between the ages of 18 to 29 believe that a workplace romance has positive effects and improves performance and morale. Before dismissing this as the folly of the young, keep in mind that more than half an individual's waking hours are spent at work, growing more familiar with co-workers while working in close proximity. Romance is not only inevitable, but it is convenient.  Workplace Options reported that 40 percent of younger workers wouldn't have a problem dating a supervisor. Workplace Options' study results also showed that 57 percent of respondents would share their workplace romance with friends, other co-workers, and even on social media. Clearly, the attitudes are changing and employers need to accept these views, through policy and action that neither encourages romance, but at the same time incorporates the reality. No policy or procedure will entirely insulate an employer from the damage that can arise from workplace romances, but limiting liability through procedures that give employees a chance to be on notice of possible issues and enough time to take action is useful for mitigation purposes.

Step  Two – The Right Kind of Policy:  Gone are the days where a company had a chance of enforcing a strict policy of "no fraternization" or "no dating," or any attempt to tell employees who they may or may not date. Also, ineffective are policies that only forbid supervisors from dating direct reports or prohibit employees at higher levels of the organization from dating those at significantly lower levels (no executive/line employee dating). Such policies only encourage secret rendezvous that reveal themselves during damaging allegations in a legal process.

With 40 percent of employees responding to a survey by Vault.com reporting that they met their spouse at work, while 72 percent of workers who have office relationships don't try to hide them, employers are better off embracing such attitudes of disclosure, creating policies such as consensual relationship agreements, or more commonly called "Love Contracts."

A love contract is designed to take the stigma and sting out of a clandestine office tryst, by requiring that both co-worker parties: (1) voluntarily admit to the relationship; (2) read and affirm their understanding of and compliance with the company's anti-discrimination/ anti-harassment policies; (3) pledge to keep their workplace interactions professional, limiting affectionate displays and romantic expression while at work; (4) pledge to report the termination of the relationship (as they see it); and (5) affirm their duty to promptly report any act or statement that they find offensive or harassing by their partner, even if the relationship is ongoing. Both parties also agree that failing to adhere to the terms of their contract can lead to discipline up to termination.

In the case where one lover/worker is in a direct reporting relationship with the other, an important part of the love contract is an agreement to mandatory reassignment of the participating co-workers’ reporting structure so there is no manager-subordinate working relationship. From that point on, the manager in the relationship no longer has any supervisory say-so with regard to the subordinate's work assignments, pay, promotion opportunities or other indicia of work. By removing the ability for one participant to "climb the ladder" through their personal means, companies lessen, if not eliminate, the ability of anyone to claim that favoritism toward the subordinate (real or perceived) played any role in any work achievement, and forecloses any future claims stemming from an imbalance of power between the two workers. The intended effect is to decrease the cause for gossip and reputational damage (at least based on personal vs. professional grounds).

Managers need not discuss the details of any specific workplace romance or contractual relationship with other employees. But, managers and supervisors should address the rules of the love contract policy broadly with all employees so it is clear to all that a relationship between co-workers is their personal business, but it cannot impact the evaluation or performance at work; harassment and discrimination will not be tolerated; and that reporting unlawful acts and statements is required. It may not stop the gossip, but in time, the policy should demonstrate that dating is not an avenue to advancement at work, but a personal matter that should have limited impact at work.

Step Three – Only "Yes" Means "Yes!":  When one co-worker asks another to step out with him/her and the answer is anything but a "yes;" when there is a single encounter and suddenly it’s over; or after a long period of courtship the tête–à–tête comes to an abrupt halt – the reaction by the company must be swift and consistent. Keeping in mind that the co-workers don't often see their romantic situation through the same lens or that they are at the same point on the relationship spectrum, employers must carefully monitor the interactions between love contractees for any sign that the encounter is over. Relying upon a well-established, anti-harassment/anti-discrimination policy, and publicized enforcement procedures for reporting and investigating such complaints, is key. Companies with sound policies have the necessary control mechanism if the behavior of former lovers and those who never had their overtures accepted decide to lash out against their intended with offensive and inappropriate visual, verbal or physical harassment.

Whether a relationship has ended for one of the parties, or the asker continues to approach the askee for dates, the company's best defense is to make sure all employees know and understand that at any stage of a relationship, if a response to an advance is anything but a "yes," both the askee and the company demand and expect an immediate halt to romantic requests of any kind.

Step Four – Know the Rules of Love at Work: Each time an employer trains its workforce on anti-harassment/anti-discrimination policies, add a segment on the company's policy regarding workplace romances. If love contracts are the rule, make sure employees know their requirements, their responsibilities, and the consequences, including discipline up to termination for violating the policy. Companies should communicate that any equivocation as to whether or not there is a relationship, or whether the encounter is or isn't over, means the company will view that romance as "dead at work." Persistent on-and-off relationships must be carefully counseled and limited, without invading privacy; but explain how the romance is interfering with work and that the company is willing to work with them to find a solution to insulate everyone while at work.

Of course, many circumstances may make individuals decide against disclosing their relationships, or entering into a love contract. But employers aren't required to, and simply can't force disclosure. Telling employees that there is a policy and procedure, and telling them about the need for compliance, provides some measure of protection for an employer. However, companies that take on a love contract policy aren't protecting themselves by ignoring situations when they are on notice of a romantic situation, even though the parties have not disclosed or come forward to sign a love contract. In such cases, companies need to have the conversation, explain the policy, and document any decision and representations by the employees involved.

Love contracts are not a panacea for all situations that can spring from romance at work, but they are a substantial and realistic step. Though not quite love itself, companies show a measure of respect for their employees by simply providing a safe and effective environment for individual expression, which protects against negative consequences when/if love goes wrong, and also protects the company if love should turn to hate.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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