Taking out a contract on workplace romance

Q. Janet in HR learns that two supervisors are in a consensual romantic relationship. Each supervisor heads a separate department, but they both attend supervisor meetings and functions together. The company has an anti-harassment, sexual harassment and retaliation policy that each has signed. The company provides yearly training on its policies to its supervisors and employees. Janet is concerned about protecting the company from possible litigation should the relationship end. She also wants to make sure the relationship does not affect their conduct in the workplace. What are the company’s options?

A. Workplace romances can be common, given the amount of time people spend at their jobs. But as Neil Sedaka once voiced, breaking up is hard to do. Sexual harassment and retaliation claims may arise after a consensual relationship ends or goes sour.

From a survey conducted in 2008 by Vault.com, 46 percent admitted to having an office romance. Another 13 percent said that they would be willing to have an office romance if the opportunity arose. Twenty percent admitted to meeting their spouse or long-term significant other on the job. Indeed, a search of the Internet offers an array of “how to” guides on dating in the workplace.

When it comes to office romance, some companies choose to have no policy and to rely on their anti-harassment and retaliation policies and training programs already in place. Other companies handle workplace romance by having a written anti-fraternization policy that prohibits dating all together or prohibits dating between supervisors and subordinates.

More recently, companies are considering voluntary relationship contracts, also called “love contracts.” While contracts between two individuals may be seen as unromantic, employers see them as a way of protecting both the individuals involved and the company from discrimination claims.

While it may not prevent all litigation, a “love contract” will assist the company in defending claims. It is a document signed by the individuals involved and the company that affirms the voluntary and consensual nature of the relationship and reiterates and acknowledges the company’s anti-harassment and retaliation policies. It affirms that neither person has been forced, harassed or threatened into the relationship. It also establishes appropriate and professional office behavior during the relationship and after if it ends.

A love contract is not perfect. It requires a policy of reporting to HR the consensual relationship. It also requires reporting to HR when the relationship ends. Employers also need to be careful about favoritism claims by other co-workers.

New Hampshire courts have not ruled on the enforceability of a love contract. The value of the document, however, is the employees’ acknowledgement. The love contract serves as powerful evidence that the relationship was consensual, that the employees were aware of the company’s sexual harassment and retaliation policies and agreed to report any harassment or retaliation if the relationship ends, and that the company took steps to maintain a workplace free from sexual harassment and retaliation.

When presenting such a contract, it is important to meet separately with each individual involved. Both individuals should sign and commit to the love contract. Depending on the circumstances, some of the following provisions may be appropriate:

• Both individuals confirm the relationship has been and continues to be consensual and voluntary.

• The company’s sexual harassment, retaliation and other applicable policies are reiterated and acknowledged. This may include a restatement of the company’s zero tolerance policy of harassment and discrimination.

• Both individuals agree to act professionally at work and to not conduct any public displays of affection or other inappropriate personal contact while at work or at work functions.

• Both individuals will refrain from favoritism and conflicts of interest.

• Both individuals agree not to use company property inappropriately or contrary to the company’s policy, including, but not limited to, its computers, e-mail, voice mail, cell phones or other devices.

• Both individuals acknowledge the company may monitor its property at any time.

• Both individuals agree to report any harassing conduct if the relationship ends.

• Both individuals agree to treat each other with respect if the relationship ends.

• Both individuals agree not to retaliate if the relationship ends at either individual’s decision.

• Both individuals agree to notify HR if the relationship ends.

• Each individual acknowledges sufficient time to consider fully and understand the love contract and each may want to consult with an attorney before signing.

Love contracts are not appropriate in every circumstance, and they should only be used in suitable situations. A company interested in developing a love contract should consult with counsel. Any policy should apply to and be enforced uniformly among employees, regardless of marital status, gender and sexual orientation as well as other legally protected categories.

Whatever an employer decides on this issue, there is no substitute for training managers and supervisors on the risks of romantic involvement with employees. Companies should have anti-harassment, retaliation and discrimination policies in place and disseminated companywide.

Jennifer Parent, a director in the Litigation Department of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1360 or Jennifer.parent@mclane.com.