By Jeffrey W. Larroca of Eckert Seamans Cherin & Mellott, LLC
Picture this scenario. A high-level executive and a manager in the same department of your company strike up a conversation, which becomes lunch, which becomes a dinner date, which becomes a full-fledged relationship. Soon, they are commuting together every day and living together every night.
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On the one hand, what’s the big deal? They are both adults, and studies show that almost 20% of married people met their spouse at work, and almost half of workers date at least one coworker.
On the other hand, there are many alarm bells that go off in the situation described above. Are the individuals currently in violation of any company policy prohibiting fraternization? If not, should there be such a policy? Are they in the same chain of command, and if so, how does the company deal with conflict-of-interest concerns?
And then there are the fairness and perception issues. What message does it send to company employees if they see a peer advancing while he or she is having a romantic relationship with a senior executive?
Finally, there is the issue of sexual harassment. Obviously, this is less of an issue when the individuals are dating. But when the bloom is off the rose and they split up, the company is left facing numerous thorny issues. Indeed, the awkwardness and discomfort of the situation can be rife with peril, especially if the decision to end the relationship was unilateral and/or not on the best of terms.
Some employers have come up with what they believe to be a satisfactory solution to these problems: the love contract. A love contract is an agreement signed by two employees in a consensual romantic relationship memorializing that the relationship is voluntary and uncoerced (its analog with regard to sexual encounters can now be found on the campuses of many colleges and universities).
Such contracts feature:
- A recitation of the company’s sexual harassment policy;
- A declaration that the relationship is voluntary and that the employees will act professionally at all times while the relationship is ongoing;
- A statement that the employees will not participate in any decisions that could affect the other’s work, both during and after the relationship ends (if applicable); and
- An agreement that if a conflict of interest is identified, one of the employees may have to be transferred or demoted.
Some contracts also cover the eventuality of a breakup by having the individuals attest that in such case, one of them must choose to resign or, if available, accept a transfer.
Pros and cons of a love contract
The upsides of a love contract are clear. The contract gives the employer an opportunity to lay out expectations and boundaries for individuals who become romantically involved at work, and it makes what is often a secret arrangement more public, thereby giving the relationship and its ramifications a transparency.
Perhaps of more value, the contract can be utilized in any later discrimination and/or harassment litigation in a manner that demonstrates the good faith of the employer and cements that the relationship was in no way forced. Finally, as noted, such contracts can contain language where the parties agree to certain actions, such as transfer, in case a conflict of interest is deemed to have arisen or if the relationship ends.
There are, however, potential downsides. First, the contract puts the employer square in the personal lives of its employees, and what is provided may be, as the saying goes, “too much information.” The contract is a stark encroachment into employee privacy, something that may not mesh with an employer’s culture.
Second, such contracts can often be superfluous. Employers should already have antiharassment policies and harassment training and, if enough of a concern, antifraternization policies that, at a minimum, prohibit romantic relationships between individuals in the same reporting line.
Third, such a contract could actually be used against the employer in certain circumstances. For example, let’s say a relationship becomes known to an employer and, for whatever reason, the employer does not require the contract. When the relationship ends and one person brings harassment allegations against another, the fact that no contract was procured can be spun to suggest employer indifference.
Tomorrow, we’ll learn about the upsides of the so called love contract. Plus, an introduction to an interactive webinar, Employee Handbooks: Key Updates, Drafting Tips, and Enforcement Advice for 2016.