OKCBiz.com
Jan. 24, 2011

February is a month of romance. And with most employees spending more time at work than anywhere else, that romance sometimes finds its way to the office. But before you send those flowers or candy to your crush in the next cubicle, employees — and the companies that employ them — should consider the consequences.

Just how prevalent are office romances?
CW: A 2007 Spherion Workplace Snapshot survey revealed that approximately 40% of U.S. workers have dated a co-employee, and another 40% would consider doing so. Additionally, a Bureau of National Affairs study concluded that onethird of all relationships start in the workplace.

Are office relationships all bad?
CW: No. But even in the best of circumstances, consensual relationships at work can affect productivity and may create complaints of favoritism by other coworkers. And if the romance later dies (as many will), there are numerous practical and legal issues that arise.

Indeed, a survey by the Society of Human Resource Management found that 17% of employees involved in a workplace relationship reported complaints of retaliation when the romance ended.

But retaliation is just the tip of the iceberg. What once appeared as a consensual relationship may later be described as sexual harassment, workplace violence or even statutory rape.

Should such relationships be prohibited in the workplace
CW: Some employers do place an absolute prohibition on workplace relationships, or at least place restrictions on relationships between supervisors and the employees they directly supervise. This will often take the form of a “nepotism” policy that says persons who are related or in a “personal relationship” cannot work in the same department or supervise one another.

The downside to a total ban on workplace relationships is that it is hard to enforce and may result in having to terminate one employee or the other when a relationship develops.

Are there ways to allow workplace relationships but still minimize liability?
CW: In the past decade, one tool that has been used with increasing frequency is a “love contract.”

This is a document signed by two employees who are engaging in a consensual romantic relationship. A well-drafted agreement accomplishes three objectives: (1) it confirms in writing that the relationship is voluntary; (2) it specifically has both parties agree that if there is something that happens in the relationship that is unwanted, they will use the company’s complaint procedure; and (3) if there is a disagreement, it will be resolved through mediation or arbitration and will stay out of court.

What kind of protection can this “love contract” provide?
CW: Many employers hope that love contracts will protect them from claims alleging the creation or toleration of a “hostile work environment” should the couple’s relationship take a turn for the worse. Theoretically, this contract could provide substantial evidence, at least when it is part of a broader sexual harassment policy, that the employer exercised reasonable care to prevent or promptly correct sexual harassment.

It can also help show that the employee knew about the preventive or corrective procedures provided by the employer, but failed to take advantage of them.

If language is added about the relationship being outside of the scope of employment, it may also be construed as evidence that the employee was acting outside the scope of employment when engaging in harassing behavior.

Finally, love contracts may simply provide evidence of consent between the contracting parties, such that the requirements for finding sexual harassment are precluded.

Is there a downside to having employees sign these contracts?
CW: The use of love contracts has yet to be tested in U.S. courts. Some commentators have expressed concern that these agreements may be found void for lack of valid consideration or because the employee was coerced into signing.

Some fear that love contracts could actually foster a hostile work environment by creating conditions conducive to favoritism. Moreover, there are also privacy concerns if an employer asks detailed questions about the intimate nature of the relationship.

Do you anticipate more employers drafting such contracts?
CW: Yes. However, these agreements should not become the primary way of handling office romances. Love contracts make the most sense for high-level employees where transfer or reporting structure changes are very difficult.

The bottom line is that employers may want to use love contracts in limited circumstances as a precautionary measure and for purposes of maintaining workplace tranquility, but should rely on them, if at all, only as part of a broader sexual harassment policy.

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