Love is in the air—and no office is safe. According to a 2017 CareerBuilder survey, over 40 percent of U.S. workers admit to having dated a colleague in the past year. Based on past findings, nearly a third of those flings are likely to end in marriage. Time to update those W-4s.
So when the love bug bites, how does your HR department respond? Some teams are turning to controversial legal agreements to ward off compliance risks.
Rules of Attraction
No, “love contract” isn’t the next hit reality show on TV. These covenants, formally called consensual relationship agreements, are signed by courting employees to confirm their relationship on record to HR. Their purpose is to mitigate risk by affirming that a romance is consensual—in theory, staving off harassment claims. That’s a justifiable end, given that the Equal Employment Opportunity Commission (EEOC) took employers to task with 12,860 charges of sexual harassment last year.
Love contracts are also used set ground rules for conduct and public displays of affection. In special cases, the agreements may include an attestation that neither party will pursue or accept a role that involves managing or reporting to the other. These provisions aren’t just intended to curb the risk of favoritism, but to also prevent retribution in case the relationship turns sour.
While sample love contracts are available online, given the agreements’ sensitive nature it’s advisable to consult with employment counsel before using one.
Stop! In the Name of Love
So are love contracts actually worth it? Sorry to break your heart: probably not. Legally speaking, the agreements are exceedingly difficult to defend in court. That’s mostly because sexual harassment plaintiffs can claim that they were coerced into signing one—a legitimate argument for those subject to at-will employment. Indeed, in a 2005 Montana Supreme Court case it was ruled that the agreements carried no weight because they were “contracts of adhesion,” or take it or leave it propositions where the signee has little or no bargaining power.
In practice, managing love contracts at a growing or large company is untenable. Between running open enrollment, processing payroll, and navigating state and local compliance, taking on the additional responsibility of tracking office romances is hardly enticing. What’s more, it does little to dispel HR’s reputation as company gossipers.
All things considered, the love contract has one other fatal flaw: it requires employees to come forward and openly admit to the existence of a relationship in the first place. According to the same CareerBuilder survey cited earlier, over a third of workplace romances are secret, and 20 percent are extramarital affairs. It’s unlikely that individuals in either of these cases would willingly sit before HR and sign a legal document affirming their romance.
Heart of the Issue
Luckily for employers, there are ways to approach workplace relationships that aren’t nearly as problematic. Implementing a strong anti-harassment program and drafting a “fraternization” or romance policy can go a long way in curbing compliance risks.
If your company doesn’t already have a written anti-harassment policy in place, it should. In states like California, that isn’t just an HR tip—it’s a legal requirement. Supplement your policy with interactive training courses tailored to both regular and supervisory employees, and make participation an annual requirement. There are a number of engaging, easy to implement programs available to employers. Having all of this in place can demonstrate a good-faith effort if enforcement agencies like the EEOC come calling. Implementing an anti-harassment policy is a routine ask of employment attorneys, so don’t hesitate to work with one on yours.
While having individuals sign love contracts isn’t best practice, having a workplace romance or fraternization policy is. Include a section in your employee handbook that addresses office relationships directly. Your policy should make it clear that the on-premises behavior should be professional and respectful of other employees. In other words, no public displays of affection in the office or on company time. Last but not least, make it absolutely clear that romantic relationships between managers and their direct reports are strictly forbidden. That isn’t extreme, it’s standard practice—among businesses that have a romance policy, SHRM reports that 99 percent ban supervisor-subordinate relationships.
If you or a colleague suspect something is “off” about an office relationship, don’t hesitate to investigate further. Any potential case of sexual harassment should be treated with the utmost seriousness and warrant a full HR investigation. Last but not least, don’t forget the two most important words in HR: document everything. Following protocol and keeping an extensive paper trail goes a long way in protecting your business from liability.
When it comes to love, it’s best to leave the contractual language to the prenup. Implementing a robust anti-harassment program and covering employee relationships in your handbook can go a long way to alleviate the liability concerns love contracts were designed to address.
See? That’s one less form to keep track of. When it comes to HR administration, sometimes the simplest solution is the best. Streamline more of your policies and practices by reading our guide, 5 Ways to Simplify Your HR.