HOW SHOULD AN EMPLOYER PROTECT ITSELF FROM WORKPLACE DATING/RELATIONSHIPS?
This is a follow up to the “Can an Employer Prohibit Dating in the Workplace” March, 2013 newsletter, and certain follow up blogs, all of which are available on our website, to review what protections an employer may take to protect itself against the potential risks and fallout from workplace dating/relationships. As discussed in our prior newsletter and blogs, there are a number of legal and business issues that may arise from workplace relationships including, but not limited to, sexual harassment claims, retaliation claims, claims after the fact that the relationship was not consensual, other criminal and civil suits, discrimination claims, unwanted gossip and distractions, and losing a valuable employee due to the fallout. Looking at this list, it is no wonder why many employers have flat out prohibitions against workplace dating. At the very least, certain care should be taken to avoid and/or address certain workplace relationship problems. What specific measures should be taken depends on the employer preference, the size of the business, the nature of the work, and any other pertinent factors.
First, while completely prohibiting workplace dating altogether is a simple answer, this may be counterproductive and have unintended negative consequences on the workforce. This may cause resentment from the employees or coworkers who think the company is standing in the way of their newly found soul mate. This may lead to reduced productivity or unnecessary turnover. Also, this may lead to deceptive behavior to cover up relationships that will happen regardless and may cause unintended consequences as a result. This means employees will be dating behind the employer’s back. Therefore, the employer cannot protect itself, and as a result someone may be slow to bring a relationship that turns abusive or harassing for the fear losing his/her own job for non-reporting. Having a more flexible policy encourages the initial disclosure of a relationship and the reporting of any potential issues and problems when they arise so that the employer can quickly, objectively and thoroughly to minimize any employer risk arising from any inappropriate conduct. Last, sometimes coupling up may increase productivity in certain fields. The relationship may increase their productivity and cooperation or a couple may be a great sales team. The coordination may lead to extra effectiveness. Therefore, a more open and flexible policy should be followed.
However, a more open policy needs to state clear procedures/guidance where employees feel like they can use HR or management as a tool to help them in their careers and their relationships. The key areas this policy should address are: 1) what is acceptable and what is not acceptable; 2) the reporting of any inappropriate conduct or information in privacy and in confidence including when the relationship started and the abuse and/or harassment; 3) that a thorough, objective and non-partial investigation will be performed upon an incident; and 4) measures that will be taken to remedy any misconduct. In addition, the policy should be clear that it applies also to a more stringent extent with regards to an employee dating a vendor, client, customer, service provider or other non-co-worker whom the employee interacts as part of his/her job. Such a relationship raises a myriad of issues such as an inherent conflict of interest, a power differential where the dating is considered a coercive quid-pro-quo conflict or a natural impression of impropriety. There is no one size fits all as each business has different needs, but the same issues arises across all businesses and professions.
First, the policy needs to state what is acceptable and what is not. The main message is that business will be kept professional and the workplace relationship must not interfere with the business of the company. For instance, even if a couple is fighting, they will continue to act in a professional manner towards one another at work and get their jobs done. It should be clear that overly abundant public displays of affection (“PDA”) and sexual activity on the premises are prohibited, as well as smear campaigns, abuse, favoritism, and harassment, and clear what each of these mean. It will also create strict limits on management’s ability to date employees due to sexual harassment, discrimination, credibility, fairness, and favoritism concerns. This sets the line and lets people know where not to cross.
Second, the policy needs to be clear that employees are expected to report workplace relationships and come to HR or management the moment that there is an issue or problem. This is that HR is there to help the employees along the process, which in turn allows HR to help manage the relationship before it becomes a legal nightmare. One tool many employers use is the “love contract” where a workplace relationship is formally registered. This is a document an employee signs when a relationship is registered that reminds employees of the issues that could arise, confirms that both employees are consensually in the relationship, and reminds employees that HR or management is there to listen, is ready to take action if anything goes wrong, and will keep any information, complaints, or problems reported confidential. The point is to make employees feel as if HR or management will help with their problems and help protect their career if the relationship goes south.
Third, it must be clear that a thorough, non-partial and confidential investigation will occur for any reported violation. This includes any employee who is a party to the relationship or any employee that complains about excessive PDA, unfairness or favoritism. This gives employees the confidence that HR and management is behind them and is not merely going to brush everything under the rug for interested parties.
Finally, the policy must clearly set what happens for violating the workplace relationship policy. For instance, not reporting a relationship that has clearly been going on for a while may result in a warning, a mark on someone’s record, or a suspension depending on how long and whether the violation or misconduct has occurred before. Certain minor violations such as unnecessary PDA or having a fight at work may result in a warning followed by more serious consequences if it continues. Last, certain more serious conduct such as harassment, abuse, favoritism, sexual activity on the premises, and the like will be dealt with accordingly even an unpaid leave during an investigation or involuntary termination are necessary.
Again, what is necessary depends on the particular employer, but the goal is to clearly communicate what is necessary and to act swiftly, objectively and appropriately to address any (potential) issues that may arise.
If you need any help in setting up such a policy to protect yourself from the various employment law schemes, we are always here to help. Contact the Philadelphia Employment Law Attorneys at Pozzuolo Rodden, P.C. to get started today.