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Tuesday, February 10, 2015

Valentines Day and the Office Headache!

5 Reasons You Shouldn't Ban Workplace Dating Q&A

It's almost Valentine's Day – do you know if any of your employees are dating each other? Should you care? If you are like most employers, you probably are concerned about the potential conflicts that can occur when employees date and work together. But, policies that ban these relationships can be difficult to enforce and may result in legal claims.
Learn five good reasons you shouldn't ban workplace dating.

Q:       We recently became aware that two coworkers are dating. They work in different departments and do not supervise each other, but we are still concerned about potential conflicts that could spill over into the workplace, or worse, potential harassment complaints if the relationship sours. Should we ban workplace dating?

A:         A: Conflicts can and do occur when employees date each other. In the past, employers who worried about these tensions would impose rules prohibiting dating among coworkers, often referred to as anti-fraternization policies. Some employers even viewed anti-fraternization policies as a way to reduce the sexual harassment complaints that can arise when consensual romantic relationships become acrimonious.

However, these policies are controversial, difficult to enforce, and can generate potential legal claims. As a result, many employers take a more "hands-off" approach and allow employee dating, except when clear-cut conflicts or performance problems appear likely. Rules prohibiting fraternization may appear to prevent some of the more obvious difficulties that can result from close personal relationships between coworkers. Common problems include favoritism, personal squabbles impacting work time, and problems scheduling vacations and shift work for involved employees.

These restrictive rules also may help reduce the chances of employees improperly sharing confidential information about your business. Even so, you must weigh the possible benefits of these policies against the legal and practical difficulties of enforcing them.
Policies prohibiting coworker dating are particularly controversial since they attempt to regulate an employee's personal relationships. And, these policies also can subject you to sex discrimination claims, under the theory that the rule has a disparate impact on females, particularly if women are the ones more frequently terminated because of a dating relationship. So, for example, if you normally would terminate a subordinate dating a supervisor, and the subordinate is female, you may face a sex discrimination claim.

In addition, a poorly written anti-fraternization policy could even violate the National Labor Relations Act (NLRA), the federal law allowing employees to unionize and to engage in "concerted activities" that involve the terms and conditions of their employment. For example, in Guardsmark, LLC v. NLRB, 475 F.3d 369 (D.C. Cir. 2007), the court decided that an employer's anti-fraternization policy that banned employees from fraternizing on or off duty, dating, or becoming overly friendly with clients or coworkers, violated the NLRA. Calling the rule overly broad, the court found that employees reasonably could believe it prohibited their discussions of terms and conditions of employment. 

The court did recognize, though, that the employer had a legitimate goal of prohibiting dating relationships and could have implemented a more narrowly written rule that did not interfere with protected activity.

Besides the legal pitfalls, you also should consider five practical problems associated with no-dating policies:

1. You will find it very difficult to enforce any rules that apply to off- duty conduct. It is hard enough to enforce employee behavioral rules that are directly related to work performance without trying to implement rules dealing with employees' dating habits.

2. Employees often resent the rules as an invasion of their privacy. No one likes to think that an employer can dictate whom to date.

3. These rules can exclude precious talent. Organizations in remote areas or communities dominated by a single employer often struggle to attract qualified workers. These employers cannot afford to limit the available labor pool with prohibitions that prohibit workplace dating.

4. You stand to lose a significant investment in recruiting, hiring, and training when an employee becomes involved with a coworker and is later forced to resign under an anti-fraternization rule.

5. As a final practical consideration, recent surveys show that dating in the workplace is a fact of (work) life. A 2014 survey conducted by Vault indicated that 56% of surveyed adults had engaged in a romantic relationship in the workplace. Of those, 8% had married their coworkers while another 14% indicated they were in "long-term, serious" relationships.

What, then, can you do to address the problems that no-dating policies are meant to prevent but still avoid the practical and legal pitfalls often associated with these relationships? Instead of prohibiting employee dating, focus on the specific conduct that disrupts your workplace, like favoritism, irregular attendance (extended lunches or shortened workdays), and inappropriate or harassing behavior. You probably already address most of these matters with your existing policies and work rules on issues like breaks, attendance, harassment, and workplace behavior.

In addition, to further minimize the potential for problems, consider adopting limited restrictions prohibiting supervisory relationships between related or dating employees and any actual conflicts of interest, or the appearance of conflicts, which may result from these relationships.

As a final note, you should shift your focus from your employees' personal relationships to actual objectionable behavior that directly impacts your workplace. That way, you can address legitimate performance problems without acting like an unreasonable and intrusive "Big Brother."

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