February 16, 2016

imageLet’s face it: it was adorable when Doctors Meredith Grey and Derek Sheppard went from being colleagues to being a really good looking couple on Grey’s Anatomy, or when Jim finally asked Pam out on The Office. The fact is, however, that real-life workplace romances are fraught with potential legal complications – both for the employer and the employees involved.

The Prevalence 

Forbes.com publishes a very interesting review every year on workplace romances, entitled “The State of the Office Romance.” In 2015, 37% of workers surveyed admitted to having been in an office relationship at one point in their lives. Of these relationships, 30% led to marriages. Another survey by Vault placed the figure much higher: 51% of respondents admitted to engaging in a workplace romance. Interestingly enough, 47% of those surveyed were aware of a colleague cheating on their spouse at the workplace. 14% of those surveyed indicated knowing of someone who had faced a career setback as a result of a workplace romance.

Sectors also may dictate the likelihood of a workplace romance. 62% of retail respondents to the Vault survey, for example, said they had dated someone at work, followed by technology at 60%, insurance at 54%, and, ironically, Human Resources at 57%.

The Good, the Bad, and the Dangerous

Barack and Michelle Obama met when Mrs. Obama was Mr. Obama’s supervisor while he summeredimage at a law firm. Normally, however, in a situation where a supervisor and subordinate engage in a relationship, the end result may not be as successful. The first problem is the potential for career-ruining conflicts of interest and disruptions to the workplace, as was the case in Dillon v. Dillon Hillstead Melanson. Additionally, there is always the concern that the more senior employee may be misusing their position of authority and be viewed as behaving inappropriately – which led to the wrongful dismissal of an employee repeatedly engaging in sexual relationships with two female subordinates in Dooley v. CN Weber. Other employees may view the relationship and any subsequent favoritism with jealousy, resulting in possible poor morale. Performance issues, owing to the distractions from the relationship, are also a possibility. In addition, sometimes people deny that relationships were consensual and allege harassment, even if that was not the case.

In the worst cases, a relationship that ends badly can result in harassment – something that is seen all too frequently in the case law. As many readers will know, Bill 168 was the legislative response to a horrific incident in which a nurse was killed by her former workplace lover. The nurse had ended the relationship but the doctor pursued her, becoming more and more aggressive and threatening. The hospital knew of the relationship and the fact that the doctor was harassing the nurse after the breakup. Nonetheless, they scheduled them both to work the same shift, which ended with her dead.

Managing a Love Affair

Ultimately, however, there is no point in thinking that relationships should be “banned” or seen as a bad thing. As the Judge said in Dooley, these types of relationships are not unreasonable in modern society (and that case was 20 years ago!). Instead, employers need to focus on minimizing the disruptive impacts of such relationships at work.

The most helpful tool to do this is to create and implement an effective workplace policy on the issues involved. This may not necessarily need to be specific to workplace romantic relationships, but should certainly be in place to address conflicts of interest. Employee should be required to disclose potential conflicts, including romantic relationships. Additionally, and crucially, employers should have, and consistently update, their harassment policies. A supervisor who learns of a situation such as the one that led to Bill 168 is under a duty to act, and is best placed to do that when they have a procedure to support them. Finally, alongside creating these policies, it is also important to implement them properly. All staff and management should be trained – no exceptions. Where possible, incorporate the policy into the employment contract. Offenders are to be disciplined, and where a conflict is reported, monitor the behavior as much as possible for the purposes of the workplace, without interfering in your employees’ personal lives.

Employees: Honesty is the Best Policy
imageYour personal life is your own business, except when it creates a conflict of interest or otherwise impacts the workplace. If it does, or even could, then you must make your employer aware of the situation. As awkward as it may be telling your boss that you are dating a co-worker, it is much worse to find yourself either in breach of policy, considered to be lying, or viewed as having a conflict of interest leading to a loss of trust. This was the case in Reichard v. Kuntz, where an employee repeatedly denied his extra-marital affair at work to his supervisors, but was caught when a co-worker told the employer. The severe loss of trust that resulted as a result of his lies helped the employer justify his dismissal for cause – something that could have been avoided completely had he been honest and followed the employer’s policy to disclose romances.

Employers and employees caught in these situations are welcome to contact us for preventative advice, solutions, and policy assistance.

Regardless of the context, workplace romances are as interesting as they are dangerous. At best, you could end up like the Obamas; at worst, you could have a Clinton-Lewinsky situation on your hands. Regardless, with a little planning, all parties involved can ensure they spend more time building their relationship than worrying about the law.

By Richa Sandill

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