Posted on January 17th, 2017
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Your Employees Dating Could Lead to Heartbreak for You
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Introduction
As much as we would like to believe love is all butterflies and boundless terms of endearment, when it comes to romance and relationships in the workplace, there can be very real legal consequences for you, the employer, when a workplace romance becomes a workplace tragedy.
It is not uncommon, especially when working in a like-minded environment with shared experiences, that two people are drawn together romantically after spending eight hours a day with each other. As of 2016, 51% of people surveyed admitted to engaging in an office romance.
Although most office romances do not result in claims, California employers continue to defend harassment lawsuits stemming from former office romances. It can be a ticking time bomb of liability when a former consensual, voluntary relationship becomes harassing if that office romance between co-workers ends and even worse, ends badly.
When lovers become rivals and that same eight hours formerly used for flirting now is used for teasing, stalking or other forms of unwanted and illegal acts, you the employer are put at risk without ever having reaped the benefits of the better days.
If a former romance becomes a problem, there are instances when you as the employer can be determined to be strictly liable for a claim of harassment and instances where you can only be considered liable if you knew (or should have known) about the harassment and did not take immediate and appropriate corrective action.
Strict Liability For the Employer
Strict liability is legal jargon for “we don’t care if this isn’t your fault or you didn’t know about it, you are in trouble anyway.” (Kind of like when your little brother did something wrong and you got in trouble too because you were suppose to be watching him.)
California holds people in positions of power (supervisors, executives, owners) to a different standard than those dating among their peer groups in the workplace.
If a supervisor is accused of harassing a subordinate, you as the employer can be held liable even if you did not have prior knowledge of the romantic relationship or any harassment.
Why?
California defines a “supervisors” as an “employer” because it was you the employer that placed them in that position of power. They are presumed to be acting on your behalf and for your benefit, thereby subjecting you, and themselves individually, to liability regardless of your knowledge of their illegal acts because supervisors are often viewed as an extension of your authority.
What about Employee-Employee flings?
It would be almost impossible to prevent employees of the same level from dating even if you tried. And in California, depending on how you are attempting to stop dating at the office, you may be violating privacy rights.
The good news however is that there is much less liability for you as the employer for employees that are of the same or similar status if there is a later claim of harassment so long as you take immediate and appropriate action.
So then, what is immediate and appropriate action?
First, a thorough investigation is recommended by someone in a supervisory position, including interviewing the party making the complaint, interviewing the accused, interviewing any witnesses, gathering evidence (emails, voicemails, etc).
Second, document thoroughly all of the actions taken for the investigation and write a report regarding your conclusion of the events.
Finally, take corrective action which may result in termination or demotion of the offending party, transfer of the offending party, or in a case of a false accusation, punishing the employee making the false accusation.
So How Can I Avoid These Problems Altogether?
Unfortunately, there may not be a way to completely avoid the problems of love in the workplace.
When love, sex, and dating come into the workplace mix, emotions become heightened as things become more personalized. In the transition from dating to breaking up there is plenty of potential for conflict as those formerly “wanted” behaviors now become “unwanted”.
As an employer you cannot restrict “lawful conduct occurring during nonworking hours away from an employer’s premises.”
So even if you try to regulate expressions of love during working hours, you cannot prohibit two consenting adults from a relationship outside of work.
Since emotions don’t stop or change when you enter the premises, I do not necessarily think it is worth the effort and expense to attempt to do so.
I think a better approach is to have:
- A very clear written policy that all personal matters should remain outside of the workplace whether it involves another employee or not.
- A very clear and easy written system for reporting harassment.
- A fast and effective method of investigating and documenting harassment.
- A strict policy of counseling employees that misbehave including termination if necessary.
- Periodic (no less than annually) training and information to all employees regarding harassment.
- A very clear policy and understanding with supervisors and managers regarding expectations of their behavior and the expectation that they will prevent harassment of other employees under their control.
- A written Alternative Dispute Resolution Agreement with every employee upon hire without exception.
In conclusion, document, document, document. Prevent, prevent, prevent. And train, train, train. But most important of all.
Make them mediate and arbitrate, do not let them litigate.
If you need an attorney who specializes in sexual harassment defense for employers contact me today so I can help you. I always offer a FREE 15 Minute Consultation.
*As always, the above is meant as general information of clients and friends of the firm. It is not legal advice with respect to any specific matter or person and should not be used without professional counsel. If you have any questions related to the same, please contact your legal counsel for specific advice. This material may be considered advertising under the rules of professional conduct.
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