Given the heightened awareness around sexual harassment, employers are more anxious than ever when they learn about employees dating. In this episode, we discuss what you need to consider when employees enter into workplace relationships.
Do you need an HR policy governing workplace relationships? In the wake of "#MeToo", it might make sense to prohibit relationships where there's an imbalance of power. On the other hand, some states prohibit employers from taking employment action against employees for lawful off-duty conduct, which may include employees who engage in consensual relationships. In this episode, we'll explain how to successfully navigate the gray areas around workplace romance.
- Tips on How to Establish an Employee Dating Policy
- Romance in the Workplace: Part 1 — Protecting Your Organization and Employees From Risk
- Romance in the Workplace: Part 2 — Policy Options for Your Organization
Kara Murray is the Vice President of Sales Operations for ADP's Small Business Client Channel. Kara has been with ADP for 9 years and has been in various sales and sales leadership positions while she has been with ADP. One of her primary goals is to educate our clients on the ever-changing HR landscape and how ADP can help them overcome everyday workplace challenges.
Kristin LaRosa is Senior Counsel for ADP's Small Business Services division. Prior to joining ADP, Kristin worked as an employment lawyer where she represented employers in litigation and provided legal advice and counseling on day-to-day employment and HR matters.
Meryl Gutterman is Counsel for ADP's Small Business Services division. Prior to joining ADP, Meryl worked as an attorney in private practice representing small businesses in employment-related matters.
Kara Murray: Since it's February and Valentine's Day is approaching, I thought we could talk about workplace romance. In a recent CareerBuilder Survey, 36 percent of workers reported dating a coworker and that's not surprising given the amount of time spent at work. But with the heightened awareness around sexual harassment, employers are more anxious than ever when they learn about employees dating. I'm Kara Murray and this is HR[preneur] , a podcast by ADP. We know you work incredibly hard to support your employees and make your business a success. More than likely, this means you wear lots of hats and one of those is probably HR Professional. We're here to help you get the insight you need in order to tackle day to day workplace issues.
This week I'm lucky to be joined by Kristin LaRosa and Meryl Gutterman. Both work as counsel for ADP Small Business Services. They're here to talk about the perils of workplace romance. I also want to thank the ADP Client Appreciation Program for sponsoring today's episode. This program allows you to earn free payroll by referring ADP and if you want to learn more you can reach out to your local sales representative. Okay. So we know from the Me Too Movement how detrimental a supervisor/subordinate relationship can be to a company. So Kristin, how should employers handle workplace relationships, especially when there's an imbalance in power?
Kristin LaRosa: So unfortunately for employers there's no one size fits all approach but these relationships do need to be acknowledged and they need to be addressed. So you may want to consider your company's size and culture when deciding how to address the issue. Given the number of relationships that develop in the workplace, it may not be practical to ban any kind of workplace dating but what you can do is discourage employees from entering relationships where there might be a conflict of interest. You also want to keep in mind that some states prohibit employers from taking any sort of negative employment action against employees who engage in lawful off duty conduct. Some states or jurisdictions may interpret that to apply to dating. So in these states that means you may not be able to terminate, transfer or deny a promotion to an employee because of their relationship status.
Kara Murray: That's right. And if you are faced with a situation where you feel you need to ban a workplace relationship because of an imbalance of power, if you have a supervisor/subordinate relationship going on, then just be prepared to enforce that ban consistently. And make sure that you're not giving your high ranking employees a pass because of their status.
Kristin LaRosa: And just to add to that, you also want to make sure that you're not disciplining a same sex couple as opposed to an opposite sex couple. So we know that Title VII prohibits discrimination that's based on sex but in recent years the EEOC has taken the position that these protections also extend to sexual orientation and gender identity. At the state and local level, the protections also can expressly include sexual orientation and gender identity as well as a protected characteristic. So you just want to make sure that you're treating all relationships the same.
Kara Murray: So with all that said, wouldn't it just be easier to have a blanket policy that prohibits workplace relationships?
Kristin LaRosa: Not necessarily. An outright ban probably won't prevent relationships from developing in your workplace and it actually could encourage employees to date in secret, which probably wouldn't be a good thing for your business. That could lead to gossip and other issues. So at least when you're aware that there's a relationship you can take proactive steps to help prevent any negative consequences.
I know of some employers who request that employees disclose the relationship so that that way they can access the situation and they can modify the reporting structure if they need to. So if you're one of those employers that does request disclosure, then we would recommend meeting with the employees individually to confirm their relationship is consensual. And then while you're there remind them that they need to be making sure that their relationship doesn't interfere with their job performance and their conduct in the workplace.
And also when you're in situations where you actually can modify the reporting structure, the question often becomes who should be transferred? So routinely transferring the subordinate may seem like the default option but if you have a man or if you have men who are primarily holding a supervisory position in your company, then that sort of routine transfer could have a disparate impact on women. So in order to help avoid this issue some employers require the supervisor rather than the subordinate to move.
So this can certainly help minimize the concern about any gender bias but that may not always be the right practical or desirable approach. So we would recommend when you have these circumstances that you're evaluating each situation on a case by case basis. And just keep in mind some of the potential pitfalls that can come from transferring employees since that would be viewed as an adverse employment act.
Kara Murray: Okay. So let's say you suspect a relationship is starting to form. Meryl, is there a good time to step in?
Meryl Gutterman: Well that really depends on the situation. You'd immediately want to step in if you receive a complaint or if you otherwise learn that there's a relationship that's negatively affecting the work environment. If you learn that one of your employees has violated a workplace policy for example, perhaps the anti-harassment policy would be an obviously one. At that point you should step in and make sure that you start a prompt investigation into whatever situation is going on in the workplace.
Kristin LaRosa: And it's also critical to encourage your employees to report inappropriate conduct. In this situation this could extend to conduct or behavior that's exhibited by the dating parties or if an employee feels like they were denied a promotion or a job opportunity that was given to one of those employees in the relationship because of their relationship status. You would want to encourage them to report that as well. And to that point, any complaints should be encouraged without exposing an employee to fear of retaliation, whether that complainant is a victim or a witness to the problematic conduct. And also you always want to make sure in these situations when you have a complaint process that you're affording the employee with multiple avenues to file a complaint and clearly explain that the company will of course take all complaints seriously.
Meryl Gutterman: Yes, and just to add to that regardless of whether you have a dating policy or not, you should have a written policy that prohibits sexual and other forms of harassment and outlines your company's complaint process. And keep in mind, too, that both men and women may be considered harassers or victims and that the victim doesn't necessarily have to be a member of the opposite sex. And also your employees should abide by your sexual harassment policy during not only work hours but also after hours and outside the workplace. You know, keeping in mind they could be at an off duty party or an outing and they still need to comply with your harassment policy in these events as well.
Kara Murray: Absolutely. If you haven't listened to our episode on lessons learned from the Me Too Movement, you'll definitely want to check that out. Kristin and Meryl talked about how the Me Too Movement has impacted the workplace and how employers can prevent and respond to harassment. So I'm going to throw another scenario at you. Let's say an employer hears from another employee that two employees are dating. These employees aren't part of the same reporting structure and aren't in a position to influence the other's performance. How should the employer respond to that, if at all?
Meryl Gutterman: So the employer should absolutely respond but their approach is going to be slightly different since this isn't a supervisor/subordinate situation. So in this case we'd recommend meeting with the employees separately to confirm the relationship is consensual and also remind them that they're expected to maintain professionalism while they're at work and their relationship cannot interfere with their performance. It's also best to remind employees of the company's anti-harassment and anti-retaliation policies. I'd have each employee review the policies and confirm in writing that they've received, read and understand each policy. And also keep a signed and dated acknowledgement in their personnel file.
Kristin LaRosa: Right. And I'd also recommend documenting the discussing and keeping a copy of that record in the employee's personnel file as well. This is something that can be really helpful to you if you have an employee who files a harassment complaint resulting from the relationship. You can turn back and have that documentation to use if you ever need to defend yourself on a complaint.
Kara Murray: Okay. Got it. Now if the relationship is impacting performance, how should this be handled?
Meryl Gutterman: So I would handle a performance issue consistent with how you've handled similar performance situations in the past. So first you can try engaging in an informal conversation with each employee and I'd really clearly explain that the performance deficiencies that I've noted and also work with the employee to possibly outline some goals or ways to improve their performance. And if after that conversation you're still not seeing any improvement, then I would go to the next step and consider having a formal documented conversation with that employee.
Kara Murray: So how can workplace relationships where there's a power differential affect other employees? What are some of the potential risks you see?
Meryl Gutterman: So when there's an imbalance in power these relationships can lead to employee complaints about favoritism or possibly even rumors that the relationship isn't consensual. So here we would recommend training supervisors on your policies. Teach them too on how to identify and respond to sex harassment and also how to handle situations where a workplace relationship impacts morale or employee productivity.
Kara Murray: Now what if an employer finds themselves in a situation where they have no choice operationally but to allow a romantic relationship between a supervisor and a subordinate?
Kristin LaRosa: That's a great question and I'm sure this happens in a lot of businesses. So there are things you can do. The first thing I'd say is actively try to manage your risks. So this might mean another member of management is overseeing employment decisions that are made with regard to the subordinate. And again, it's requiring that each employee acknowledge that the company's anti-harassment and anti-retaliation policies are going to be top of mind.
We'd also recommend that you remind your supervisor not to take any adverse action if the relationship ends or is having trouble. And then remind the employee that they too have the right to take action and end the relationship without any adverse employment consequences. And if they have concerns or feel that the relationship is impacting their work environment that they should be reporting those concerns to HR or to somebody who can help them address the situation and make sure that they're being treated fairly in the workplace.
Kara Murray: For sure. Now what if an employer learns of a romantic relationship between one of their employees and one of their clients or vendors?
Meryl Gutterman: So this is something else that could present issues for the company. You could have a situation where the employee is steering business to a vendor, which would be against company policy. And you're also going to have to deal with sexual harassment laws that extend to protections to non-employees as well. There are sexual harassment laws that address vendors and contracts and clients. So employers need to be mindful of these laws where there's a romantic relationship between an employee and a client.
So because the relationship could reflect poorly on the company and at worst it could expose the company to risk, there are some companies that have rules against employees dating clients, vendors or other third parties outside of the workplace.
Kara Murray: Okay. So we talked a lot about potential risk related to workplace dating. For employers out there who are considering a workplace dating policy, what recommendations do you have?
Kristin LaRosa: So I think first it's a great idea to implement a workplace dating policy, especially with what we're seeing with regard to the Me Too Movement. So I would suggest that first employers consider whether they're going to in fact require their employees to disclose their relationship to the company and also whether they're going to prohibit relationships that present a potential conflict of interest. I would also advise employers and working with HR perhaps to contemplate what might constitute a conflict of interest.
It definitely varies depending on the company and the industry that you're in. And consider also including those examples in your policy. The policy should also outline reasonable expectations on conduct for employees whose relationships may not present a conflict and explain that certainly the company's anti-harassment policy will apply in these situations. Harassment will not be tolerated. And then remind employees that they must maintain professionalism in the workplace and also at work related events.
Kara Murray: Great. Thank you so much Meryl and Kristin. So it sounds like personal relationships in the workplace are bound to develop but if you clearly define inappropriate conduct, you train your supervisors on how to respond to it, that it can really help minimize any negative impacts. We want to thank you all for listening to HR[preneur]. Again, I'm Kara Murray and for all the latest episodes you can subscribe in iTunes or wherever you listen to podcasts.
HR[preneur], a podcast by ADP's Small Business Services, is designed to help you get the insight you need in order to tackle day-to-day workplace issues. In each episode, you'll hear from industry experts about the latest in HR, such as the #MeToo movement, evolving marijuana laws, and more. Each episode will be between 10 and 15 minutes long, but full of practical advice. Find us on Apple® Podcasts or visit the HR[preneur] podcast page on Podbean.
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