Today is Valentine’s Day — a fun holiday for many but also a great reminder and opportunity for employers to review policies and procedures related to personal relationships at work. More than 60 percent of employees have engaged in some kind of romantic relationship at the workplace and a shocking 40 percent of those employees have done so while cheating on an existing partner, as a recent Forbes Advisor survey highlights. With the potential for workplace relationship drama to create a human resources headache, employers should take a moment to reevaluate how to handle personal relationships with the following guidance.
An employer’s primary tool to mitigate any risks associated with workplace romances is to create and enforce an effective policy addressing these relationships. Generally, employers should not regulate their employees’ lawful off-duty conduct, so employers should not include blanket prohibitions against coworkers entering into consensual romantic relationships.
Employers do have a strong business purpose in preventing conflicts of interest within their organization, so employer can create rules and policies designed to mitigate those conflicts. For example, employers can require employees to disclose their relationship so the employer can evaluate whether the relationship creates a conflict of interest ― like when a supervisor is dating a direct report.
Under these circumstances, the supervisor substantially risks creating a conflict of interest by engaging in favoritism with their partner or disparate treatment of other direct reports. Employers can prohibit this type of relationship or otherwise reassign one of the parties so a conflict of interest is no longer at risk. In this case, the employer is not taking an adverse action against employee because of lawful, off-duty activities, but instead acting to eliminate a conflict of interest with a legitimate, non-discriminatory business decision.
Once a consensual relationship is disclosed, employers may require both employees to sign a consensual relationship agreement that says:
- The relationship is consensual and should not cause disruption in the workplace;
- No sexual or inappropriate conduct should occur in the workplace; and
- The employees will comport themselves in accordance with all relevant workplace policies, including harassment prevention and code of conduct policies.
Employers without these agreements should consult with legal counsel for assistance.
Additionally, employers should train supervisors to report conduct between coworkers that appears to relate to a romantic relationship so the employer can investigate the conduct and prevent any potential workplace harassment. Both federal and California law require employers to take reasonably prudent steps to prevent harassment in the workplace. Romantic relationships risk creating hostile work environments either through the break down of the relationship or through other employees witnessing inappropriate romantic conduct. Training supervisors to recognize and report this conduct is an important step to preventing workplace harassment.
Lastly, employers should continue to stay up to date on their mandatory sexual harassment prevention training. Employees must take one hour of training every two years while supervisors must take two hours of training every two years. Beyond checking the box, employers should ensure they are providing effective training that addresses complex situations such as how consensual personal relationship may create hostile work environments.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
CalChamber members can use the Consensual Relationship Agreement on HRCalifornia. Not a member? Learn how to power your business with a CalChamber membership.
