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‘Love Contracts’ Go Mainstream as Employers Track Office Romance

Oct. 22, 2020, 9:30 AM

Three years after the eruption of the #MeToo movement, businesses are still revamping their workplace dating policies, sometimes turning to disclosure requirements that may make employees blush but don’t run afoul of privacy laws.

While workplace dating policies have been commonplace for years, typically targeting relationships between managers and subordinates, many companies have been compelled to update them to take into account new state anti-harassment laws and remote work activity spurred by the coronavirus pandemic.

“Employers have always had the ability and the right to prohibit relationships between employees,” said Danielle Urban, a privacy and labor partner at Fisher Phillips in Denver. The #MeToo movement has “raised everyone’s awareness” of what kinds of employee behavior are unacceptable and should be shut down, she said.

The asset management giant BlackRock Inc. updated its policy last month, requiring all employees, globally, to disclose personal relationships “so that any actual or perceived conflicts can be managed appropriately, and the policy can be applied consistently and objectively,” a company spokesperson said.

That new vigilance came after BlackRock executive Mark Wiseman was ousted last year for a consensual affair that violated prior policy. McDonald’s Corp. fired, then sued, Chief Executive Steve Easterbrook for violating its intracompany rules.

Every Facebook employee at the director-level and above must disclose “any romantic or personal relationship with anyone at the company so that we avoid the possibility of the more junior person feeling pressured, even if they are in totally different parts of the company,” a spokesperson for the social networking platform said in an email. The company implemented the policy in November 2018.

Love on the Dotted Line

Some companies are having workers sign “love contracts,” requiring employees to clue employers into when they are in (and potentially out of) love, according to Greenspoon Marder LLP Partner Adam Kemper, who consults employers on workplace matters. They also might include real-world examples in the policies, demonstrating exactly at what point in a relationship workers have to flag their newfound romance for an employer.

“The goal is to take the guesswork away from the employees and to never give employees the excuse that they didn’t know or didn’t understand the need to report their relationship,” he said.

From an anti-harassment stand-point, the policies are in place for good reasons.

Workplace romance policies can help curb inappropriate displays of affection, reduce distractions, and discourage unfair treatment among employees, said Anita Allen, a professor of law and philosophy at the University of Pennsylvania.

Some companies go so far as to prohibit all workplace relationships regardless of hierarchy, said Mark Goldstein, a partner at Reed Smith in New York. These blanket bans may end up backfiring by keeping workplace romances behind closed doors, which can lead to sexual harassment issues going unreported.

“I’m not saying it’s never appropriate, but banning all employees from dating ignores the realities of the workplace,” he said.

It’s Alright to Pry

But legally, there’s no expectation of privacy for workers—even if the policies come across as prying into what workers do on their own time.

“They’re employees of the company, and the company feels it has a right to know about relationships between its employees,” said Kemper, the Greenspoon attorney. “It’s hard to make an argument that an employee has a protected privacy interest in a relationship with a coworker.”

Companies have a role in creating a climate that doesn’t make people uncomfortable, according to Vanessa Bohns, a professor of organizational behavior at Cornell University. Prohibiting dating among coworkers, or at least requiring the disclosure of a relationship, could be one part of that.

A recent report published by the National Women’s Law Center said that more than one in three workers experience sexual assault, assault, rape, or other physical harassment. And of the workers who reported harassment, two of three turned to an employer.

A clear dating policy can help workers by limiting potentially coercive relationships between employees from different levels of the corporate hierarchy, said Darci Burrell, a founding partner of Levy Vinick Burrell Hyams who represents workers.

“When workplace relationships between peers go wrong, there is always the possibility it will impact the work environment,” she said in an email. “But there is real danger, as we’ve seen repeatedly, that higher-level employees may use their power over subordinates to coerce individuals into relationships they may not otherwise be interested in or into continuing a relationship they are ready to end.”

Coercion can continue to exist in some situations because relationships are secret, she said, or “at least secret enough that people pretend not to see it.” Policies should make clear when employees should come forward to report, and why this is important, which is learned through sexual harassment training.

“Requiring these relationships to be disclosed exposes them to daylight, hopefully making it more difficult for abusive workplace relationships to develop,” Burrell said.

After Hours Privacy Implications

“The regulation of interpersonal relationships raises privacy concerns,” said Allen, the professor at Penn. “People can understandably feel that they’re intrusive, especially within a large company.”

There’s also the question of what constitutes a relationship and whether that includes something like a one-night stand or a series of out-of-office dates, Allen said. That can make it “tricky” for employees and employers alike, but that doesn’t mean they shouldn’t try, she said.

And while workers may feel that sometimes these policies go too far, there isn’t much they can do to stop it.

Several states, including Colorado, have lawful off-duty conduct statutes, said Karla Grossenbacher, a labor and employment partner at Seyfarth Shaw in Washington. These laws provide protections for workers when they’re not on the clock and give employees privacy for things like protesting and relationship status.

But if employees’ conduct interferes with their ability to do their jobs, as can happen with workplace flings, employers can take action, she said. It’s possible workers could argue invasion of privacy, but Grossenbacher said she hasn’t seen any of these claims in her own practice.

“Presumably no one would bother doing that unless the employer fired them or something,” Grossenbacher said. “Most people would probably continue with the relationship without talking about it.”

The California Constitution, however, protects privacy rights at work and outside of it, said Diana Tsudik and Thu Do, partners at Gilson Daub. That protection would shield from mandatory disclosure a relationship between colleagues, but not one between a supervisor and a subordinate, they said.

Why Now?

The passage of worker-friendly state laws are an impetus for employers to revisit their dating policies, as states like New York, California, and Delaware make it easier for workers to sue employers over sexual harassment allegations, according to Amory McAndrew, an associate at Hoguet Newman Regal & Kenney.

Under New York legislation signed into law last year, for example, there’s a greater risk of liability from third parties, like a business’s vendor or client, as well as a more lenient standard for recovery, she said.

Title VII of the 1964 Civil Rights Act accounts for third-party liability, but New York’s law can be construed “liberally,” according to its text.

Urban, the Fisher Phillips attorney, said some companies have expanded their disclosure policies to include relationships employees have with independent contractors and clients.

The pandemic has also prompted employers to look at their policies on workplace flings, acknowledging that behaviors might change as work lives shift online and onto digital platforms, Kemper said, noting he’s helped a number of employers revisit their policies to account for inappropriate Zoom call comments or social media interactions.

“It’s just an underlooked area,” he said.

Going Forward

These policies have existed since before #MeToo, but it’s a good thing the movement has compelled companies to re-evaluate their policies, Urban said.

Employers can and should implement workplace romance policies, but they should also be wary of coming across as “too heavy-handed,” she said. Excessively stringent policies can demoralize workers and potentially stir up privacy issues.

“Employers should ask themselves: what is it we’re trying to prevent?” Urban said. “Why would we want to regulate relationships between workers, and what kind of behavior are we trying to prohibit?”

McAndrew said corporate culture as a whole, not just a dating policy, should be the focus for businesses.

“Encourage a corporate culture that doesn’t condone sexual harassment,” she said. “Give them the tools to interact in a way that is appropriate.”

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Jake Holland in Washington at jholland@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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