Oh, L’Amour.  As Valentine’s Day approaches and the flowers and cookie bouquet deliveries start roaming the hallways, it is time for us to turn our sights on one of the most innocent-seeming, yet problematic, aspects of employment law:  the workplace romance. 

Despite the fact that quid pro quo harassment claims continue to decline in favor of the much more popular hostile work environment claim, we must recognize that some entirely consensual workplace relationships go bad.  And the result is a claim that “I only did that because I didn’t feel like I had a choice” or “I wouldn’t have dated her if she weren’t the boss.”  This type of situation is enough to turn any cupid into a devil. 

Work romance statistics:  With work hours longer, and more women than men entering the workplace, an estimated 60-75% of employees have entered into an office romance at one time or another.  Of those, 20% claimed to have been dating a boss or supervisor.  Many of us know someone who met his or her significant other at work.  However, despite the commonplace of workplace romance, it is shocking that almost 75% of employers have no policy on office romance at all.

So how do you keep those little flings from getting flung into the courtroom?  Contrary to what you might believe, a policy that prohibits all dating in the workplace is rarely appropriate, unless very specific conflict issues have arisen as a result of workplace relationships.  In fact, policies forbidding all dating have backfired on many employers, creating an environment where employees seem to enjoy breaking the policy because of the risk involved and lose respect for other management policies.  In addition, California employers must stay aware of the broadly worded provisions of the California Labor Code that forbid employers from discriminating against an employee or applicant for lawful off-premises conduct during nonworking hours. 

What about a “love contract”?  The idea of a “contract” may seem distasteful when it comes to romance.  After all, there is nothing romantic about sitting down with a human resources representative, copping to a relationship with a co-worker or supervisor, and committing the nature of that relationship to paper.  However, as an employer, failing to do this could lead to a sticky situation in the event the relationship fails and no one bothered to document it in its honeymoon phase.

What is a love contract?  A love contract is essentially an agreement between two consenting adults to clarify that the relationship itself is, in fact, voluntary and legitimate and not the product of a subordinate being forced into something untoward because of the imbalance of power between him or her and his or her supervisor. 

It is intended to capture the intentions when the relationship is working—so that when it isn’t—a party will have a significantly harder time demonstrating this was part of a sexually predatory scheme on the part of a randy colleague.  Both parties acknowledge up front that’s not the case.  At this time, there hasn’t been a case where the validity or coercive nature of a love contract has really been challenged, but regardless of the result, this type of agreement will serve as a powerful evidentiary tool and, at the outset, a reminder to the employees that they need to behave appropriately in the workplace.

When to use a love contract:  To decide whether a love contract is appropriate, review the following factors:

• Whether company policy addresses office romance or relationships;
• Whether the particular relationship is covered by the policy and, what, if anything, does it say about this particular type of relationship;
• The potential impact on morale if the relationship is permitted to go forward;
• The actual conflict that could occur (for example, are the two individuals given votes on particular financial issues that could unfairly advantage them over others); and
• The practical impact of having the parties execute such an agreement.

The blossoming of a love contract:  When drafting a love contract, you should ensure that the agreement is fair to both parties and provides for equitable enforcement.  In addition, you should consider including the following elements:

• Acknowledgement by both parties that the relationship is consensual;
• An acknowledgement by both parties that, up to the date of the contract, no behavior has occurred that the employees believe violates the company’s policies;
• Procedures the parties should follow if the relationship becomes nonconsensual in any way;
• A statement summarizing or referencing the company’s policies on workplace romance, sexual harassment, workplace conduct and business ethics;
• An acknowledgement by both parties that they are aware of and understand these policies, and the potential impact each has on their relationship; and,
• A statement explaining what happens if either employee fails to abide by company policies.

Remaining issues:  Even with a love contract, there are still issues with which an employer must deal when a subordinate and manager enter into a relationship.  The contract does not prevent other employees feeling they are subjected to a hostile work environment if the couple engages in romantic behavior at work.  It also does not prevent “paramour theory” harassment cases where other employees claim the only way to get ahead is to sleep with the boss.  It likewise does not impact situations where simple favoritism exists.  For these reasons, it is very important that once a love contract goes into place, the company still takes affirmative steps to prevent the relationship from interfering with the work environment of other employees.

Workplace Solutions: We recommend reviewing your company’s policy on romance or relationships in the workplace, and to the extent it does not have one at least dealing with subordinates and managers dating and actual conflicts, consider implementing such a policy.  Ensure the policy does not violate the California Labor Code protection for off-duty, off-premises lawful conduct.  For employees who come forward with such relationships, consider what impact a love contract may have.  Finally, work with employees both in and out of the relationships at issue to ensure there is no impact on the environment when relationships grow.  Most importantly, regardless of whether you decide to use a love contract, review your sexual harassment policy and consider adding additional training that addresses workplace romances and the special circumstances that come with them.

By Chelsea D. Spuck and Laura J. Maechtlen