Employment Law

When I train management teams on sexual harassment across Indiana, I often am asked about workplace romance and fraternization policies. In many workplaces, co-workers spend a lot of time together. It can be natural to develop social relationships. Sometimes things get romantic. If the relationship is consensual and welcome, should that be a problem?

Best Practices for Workplace Romance and Fraternization Policies in Indiana and Elsewhere

There are several different ways to address romantic relationships in the workplace. Company culture often influences the approach. Some thoughts follow:

Policy Development and Workplace Harassment Training Are Critical

Start with a thorough and well-thought-out policy that details your company’s workplace romance guidelines and procedures, and then channel that policy into effective workplace harassment training. Your workplace romance and fraternization policies and training should achieve the following:

• Cover conduct by board members, executives, managers, supervisors, employees, contractors, clients, vendors, and visitors;
• Address sexual harassment;
• Provide examples of conduct that you do not tolerate;
• Encourage prompt reporting of unwelcome conduct and provide several ways to do so;
• Prohibit retaliation; and
• Stress the importance of leading by example.

To ensure that your policies and training are legally sound and compliant with state and federal law, it is wise to consult with an experienced Indiana employment lawyer.

What about Extramarital Affairs?

Decide how to deal with situations where employees involved in romantic relationships in the workplace are married but not to each other. Do you view this as an indication of poor judgment or dishonesty? Is there a safety risk of a disgruntled spouse coming to the workplace? Could this turn into bad PR for the company? I have encountered few people who would jump at the chance to involve themselves in others’ marital issues. Nevertheless, this issue comes up, and it is good to have a plan.

Workplace Romance Guidelines for Nonsupervisory Coworkers

Examine your culture and decide if there truly is a need to prohibit welcome, consensual romantic relationships between nonsupervisory coworkers who cannot influence each other’s pay, assignments, or opportunities for advancement. Perhaps regular workplace harassment training and enforcement of your workplace harassment and general code of conduct policies is an acceptable alternative to an outright ban of all romantic relationships in the workplace.

As you decide, consider whether state or local laws limit an employer’s right to regulate off-duty conduct. An Indiana employment lawyer can help you identify and evaluate any applicable laws and regulations, then structure your workplace romance and fraternization policies and training accordingly.

Imbalance of Power and Romantic Relationships in the Workplace

Consider limiting, or prohibiting, romantic relationships between employees in a direct supervisory relationship and/or where there is a substantial imbalance of power. This kind of workplace romance involves several legal and practical landmines. For example, is the relationship truly consensual (as opposed to one person having “consented” solely from fear of job loss)? Are you prepared to deal with actual or perceived retaliation if the relationship ends? Would the relationship result in actual or perceived conflicts of interest? How will you handle other employees’ perceptions of sexual favoritism?

Skin in the Game

If you allow a workplace romance where there is an imbalance of power, consider whether you are legally able to require the individual with the power to indemnify the organization for liability based on his or her conduct toward the other person. Review, among others, applicable wage laws before proceeding. Such an arrangement would not solve all your problems or eliminate the potential for employer liability, but it might provide a financial incentive to not abuse the power.

Love Contracts in Workplace Romance and Fraternization Policies

Consider whether it is necessary for employees to report their romantic relationship to human resources (HR) and/or whether a “love contract” is appropriate. Perhaps one of the great misnomers in employment law, the love contract is a document that both employees sign to acknowledge they understand workplace romance guidelines, which might include the following:

• Prohibition of workplace harassment;
• Procedures for reporting unwelcome conduct;
• Requirement that the relationship must be welcome and consensual;
• Statement that romantic behavior at work is not appropriate;
• Statement that efforts to influence each other’s pay, assignments, etc. must be avoided;
• Expectation of professionalism, even if the relationship ends; and
• Requirement to report unwelcome conduct promptly.

Love contracts are tricky. Employees may perceive them as too intrusive, which may impact recruiting and retention. In addition, they may discourage employees from reporting their relationship to HR. There’s probably little that is more deflating to a budding romance than having to tell a stranger about it and also being asked to sign a document that all but assumes your relationship will end and emphasizes how you must behave when it does.

That said, love contracts can be a useful addition to workplace romance and fraternization policies. These documents can be a good reminder of expectations, especially when dealing with a workplace romance that involves employees in a direct supervisory relationship and/or where there is a substantial imbalance of power.

Separation Anxiety

Exercise caution when requiring separation of employees who are, or were, involved in a workplace romance. When deciding whom to transfer, consider potential claims of discrimination. Further, if a relationship that ended involved an imbalance of power, consider whether forcing the subordinate employee to accept an unwanted transfer may itself generate a claim of retaliation. As in most cases, the facts matter.

Dating the Vendor or Client

Think about how to handle romantic relationships between employees and vendors or other business partners, or with clients/customers. Is a ban appropriate? Is your conflict of interest policy, in combination with your workplace harassment training and policy, sufficient? Will you require the employee to report the relationship to HR?

Take Reports Seriously

Whatever you do, take reports of unwelcome conduct seriously. Never assume that sexual or other workplace harassment cannot occur when two people are, or were, in a romantic relationship. Investigate reports of unwelcome conduct in this context just as you would in any other context.

Consult an Indiana Employment Lawyer about Workplace Romance and Fraternization Policies

For Indiana businesses, your best bet is to consult with an experienced Indiana employment lawyer who can help you structure workplace romance and fraternization policies, design and conduct workplace harassment training, and deal with legal issues related to romantic relationships in the workplace when these matters arise. The employment attorneys of Wooden McLaughlin LLP can assist with these and all of your employment law needs. Call us at 888-639-6151 or visit our offices in Indianapolis, Evansville, or Bloomington to schedule a consultation.

(This post is not legal advice. Consider consulting with a lawyer about specific situations.)