Employment Law – Workplace Romance and Privacy

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Employment Law

In a recent survey taken by Vault.com’s, (“2014 Office Romance Survey”), 56 percent of survey participants said they engaged in a workplace romance.  The survey also evidenced that both men and women equally participated in a workplace romance.

While office romance is often sweetly and innocuously portrayed in novels and films, in reality, it can be a potential liability for employers.  In California, for example, employers can be held strictly liable for the sexual harassment of a subordinate by a supervisor.

Employers have taken this fear to heart (no pun intended). According to SHRM, which canvassed 380 HR professionals in 2013, more than twice as many employers have written or verbal polices on office romances in the past nine years.  This is due to the variety of concerns that an office romance can produce for an employer.  While sexual harassment is a prime concern, it is not the only one – conflicts of interest when the relationship is between a supervisor and a subordinate, the friction that arises when a workplace relationship is over that affects other workers and the privacy issues of the employee, are all equally important and viable concerns.

Yet, in California, the legal standpoint on forbidding workplace romance can clash with an employee’s right constitutional privacy.  The California Labor Code prohibits an employer from discharging or discriminating against an employee based on lawful conduct occurring during nonworking hours away from an “employer’s premises.  While this statute does not in itself automatically create a substantive right for an employee, recent California cases have given legal protection to workplace romances.  This protection has narrowed the scope for employers in that the employer must be careful not to take an adverse action against an employee based on the relationship between an employee and his or her co-worker, without violating the employee’s constitutional rights.

This has left California employers with the burden of balancing their business interest with those of their employees.  Some companies, in an attempt to mitigate their legal exposure, have established anti-fraternization policies; however, since these policies are oftentimes vulnerable to attack for encroaching on the employee’s constitutional privacy and association rights, these policies are not always a sound way of protecting the employer.

In contrast, employment policies that prohibit sexual harassment and discrimination — and encourage employees to come forward with complaints — are a salient option.  In this manner, the employer complies with California law and can take action in accordance with its policies should a romance go awry.

In the end, workplace romance is complicated.  Bottom’s words sound true:  “Reason and love keep little company together now-a-days.” (Midsummer Night’s Dream).