In a couple of weeks, millions of Americans will exchange bouquets of overpriced roses, chocolates, kitschy cards and expensive tokens of affection to show their significant other how much they love them. Cupid, however, may want to avoid the workplace in the era of #metoo.
It’s Best Not to Work with Your Valentine
It is wholly unrealistic for businesses to adopt or enforce a strict “no dating” policy at work. Aside from the administrative nightmare created for Human Resources of policing employees’ personal lives, such a policy would negatively affect morale, recruiting and retention. Moreover, since many long-term relationships and even marriages begin in the workplace, such a policy could be detrimental. However, particularly in light of the important lessons learned from #metoo, there do need to be rules to protect the employees and the business from the pitfalls of office romances.
As part of the employee handbook, companies should have a “Conflicts of Interest” Policy that clearly states that a major conflict of interest to be avoided is having employees who supervise each other romantically involved (or related by blood or marriage). Some companies call this a “fraternization policy,” a “dating policy” or even worse, an “office romance policy.” (A “fraternization policy,” aka a “non-fraternization policy,” can also run afoul of our increasingly over-active National Labor Relations Board, if the language gives the impression that co-workers are not free to associate and/or to discuss topics of mutual interest in the workplace.) Such targeted monikers, however, breed negativity, and do not focus on the inherent issue, which is that an office romance can be fine if there is no conflict of interest or disruption of the workplace.
When a manager and subordinate are dating, the perception (if not the reality) will be that the subordinate is receiving special treatment. There also is the problem of what happens when the relationship ends. The subordinate may claim that he or she was coerced into the relationship, and that it is evidence of sexual harassment. (One of the lessons learned through the #metoo movement has been that women have had to silently endure unwanted advances and/or relationships for fear of losing job opportunities.) In addition, any negative treatment experienced by the subordinate after the breakup (failure to get a promotion, smaller than expected raise, etc.) may be viewed as retaliatory.
Some companies have tried to circumvent these issues with a so-called “love contract,” where the subordinate employee agrees that he or she consents to the relationship, and will not sue for harassment. This is really a horrible idea. First of all, no one would, or legally can, consent to harassment that has not occurred yet. Second, having Human Resources (or worse, Legal) potentially intimidate an employee into agreeing they have “consented,” may actually provide the evidence needed later to show that true consent was never given. So, in the end, all the “love contract” really does is document the fact that everyone knew sexual harassment was a real possibility, and they were so worried about it, they coerced the subordinate into signing a document that purported to take away his or her right to sue – for no consideration at all. As noted above, it is simply a really horrible idea.
The actual best way to mitigate the legal risks of office romances is to avoid them before they ever arise. The employer’s policy should require the manager (not the subordinate) to disclose any relationship to Human Resources, so that the reporting relationship can be changed to avoid the appearance or possibility of favoritism. Sometimes, it may be necessary to do a transfer – but that should almost always affect the manager, so as not to penalize the subordinate. The important thing is that the romantically-involved employees should not work directly with each other on the same matters and the supervisor can have no decision-making authority over her or his significant other.
It is also a good idea (usually as part of the policy against harassment) to let all employees know that even if they have a romance that complies with the Conflicts of Interest Policy, public displays of affection, or other conduct that can be disruptive or make other employees uncomfortable, must be avoided or it may lead to discipline. (It also should go without saying that in the era of #metoo, public displays of affection generally should be avoided. There is no such thing as being a “hugger.” You are likely just a potential defendant, whose hugging was simply tolerated in the past.) Unfortunately, this likely includes the often over-the-top Valentine’s Day gifts delivered to your office sweetheart. It flaunts the relationship inappropriately, and can make other employees uncomfortable (in a way that can lead to harassment claims). Send the roses or chocolates to their home instead.
For Valentine’s Day at Work – Think Back to Grade School
We all remember our teacher’s advice for how to properly celebrate Valentine’s Day – “you have to bring the same thing for everyone or you cannot participate.” That was actually extremely good advice for Valentine’s Day in the workplace as well. If you want to bring a cheesy card for everyone (a personal favorite was the train that says “I choo choo choose you”), or bring doughnuts or candy to share, that is a great way to celebrate with your co-workers that will not lead to hurt feelings or the perception of favoritism. Just like in grade school, however, the gifts should be simple, generic and inexpensive. You would not have brought jewelry for all the kids in your third grade classroom; and you should not bring expensive or personal gifts for your work colleagues on Valentine’s Day.
Another way to have fun without creating risk is to attach Valentine’s Day to a team-building experience. Human Resources can set up a “Valentine’s” or “Love” Board, where employees can post hearts or notes on what they love about their job. It is an opportunity for co-workers – and management – to express their appreciation for one another in a way that maximizes positive feelings and minimizes legal risk. Another good and safe idea is to have a Valentine’s Day pizza party or potluck where employees can have lunch together and maybe get a box of candy hearts or Valentine’s cookie as a sign of appreciation. Any time you can provide unexpected, and sincere, signs of appreciation to your employees, you make the workplace more enjoyable and more productive for all.
So this year, when planning Valentine’s Day with your sweetheart, show him or her what’s in your heart, but if you feel like expressing that emotion in the workplace, remember the lesson learned from St. Valentine himself – he may have become a saint, but it’s not because he enjoyed a long and fruitful life after he acted on his emotional feelings.
First appeared on HR.com, February 4, 2019.
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Todd Wulffson
Todd R. Wulffson has focused his practice on counseling and defending businesses in labor and employment matters for over 30 years. In addition to private practice, from 2006-2010, Wulffson served as General Counsel and SVP of…
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