HRPA Webinar

February 10, 2016

Stuart E. Rudner

&

Richa Sandill

The Dos and Don’ts of

Workplace Romance

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POLL

Have you

1. Dealt with workplace romance in your office/organization

2. Dated a colleague

3. Met your spouse/significant other at work

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Is this really an issue?

Forbes 2015 “The State of the Office Romance”

37% of workers admitting to office relationships

– 30% of these led to marriages

Retail most likely sector to find romance (62%)

followed by technology (60%) and HR (57%)

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51% admitted to workplace romances in Vault.com survey

– 47% aware of infidelity of

– 14% reported career setbacks related to affair

Michelle Obama was Barack’s supervisor

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Dangers of Workplace Romances

Can lead to:

– Conflicts of interest

– Jealousy / Poor morale

– Effect on career advancement

– Performance issues

– Inappropriate workplace behaviour

– Workplace harassment

– Constructive dismissal

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Supervisor/subordinate relationship

Cannot have one partner controlling other’s:

– Career trajectory

– Remuneration

– Workload

– Reviews

Risk of beneficial treatment or perceived beneficial treatment

Risk of unfavourable treatment of someone who has conflict with subordinate employee

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Ban inter-employee relationships?

Many relationships start in workplace

Workplace relationship is not a problem in and of itself

Probably can’t stop it from happening

Only problem if it affects the workplace

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Implementing Policies

Publicize policies

Train all employees: staff, managers, supervisors, executives

Monitor behaviour

Discipline offenders

Update regularly

Incorporate into employment contracts

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Conflict of Interest Policy

– Define conflicts of interest

– not specific to romantic relationships

Address office romances as one example

– Address how conflicts dealt with

– Take prevention measures when you learn about a potential problem

– Be consistent

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Policies

Disclosure

– Require disclosure of potential conflicts of interest, including romantic relationships

– Only require disclosure if potential impact on the workplace or conflict

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Policies

Harassment

– Harassment-free workplace

– Provide reporting mechanisms

– Duty to investigate

– Protections from retaliation

– Repercussions for knowingly making false allegations

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When a relationship is reported

Address any conflict or potential conflict of interest

– Transfer one of the employees

– Change reporting structure so the subordinate reports to different manager

– Change control over compensation, workload, promotions etc

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BUT

Separating employees can be tricky:

– Small workplaces

– Senior employees

– Employees may not want to be separated

– Knowledge that this is the repercussion can discourage employees from disclosing the relationship in the first place

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When a relationship is reported

Agreement

– Have both employees sign agreement that:

Relationship is consensual

They have disclosed the relationship to the Company

They agree the relationship cannot and will not affect the workplace

Discuss concerns and expectations with senior employee

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Non-disclosure of romantic relationship

Many employees may not want to disclose their relationship to the employer

Relationship may involve extra-marital affair

Company has no place in the bedroom

But Company has right to know about potential conflicts of interest or potential liabilities

Breach of policy, dishonesty

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When a workplace relationship goes bad

One party breaks it off

Interested party is spurned

Can lead to bad working relationships, retribution, workplace harassment, or even worse

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Bill 168

Genesis was murder of nurse, Lori Dupont, by ex-boyfriend, doctor working at same hospital, after she ended their relationship

Extreme example of how things can go very badly

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Bill 168

Hospital knew about ongoing harassment and threat against Ms. Dupont

Failed to address it

Scheduled to work together the day Ms. Dupont was murdered

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Bill 168

Employer’s duty to provide safe and harassment-free workplace

Take harassment complaint seriously

Duty to investigate

– Fairly

– Thoroughly

– Promptly

– Document!

– Do not make a decision ahead of time

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Supervisor’s duty

Supervisor who learns of harassment from workplace romance must act

Has to report it to HR, management, ensure that it is addressed and investigated

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Supervisor’s duty

Supervisor runs risk of being named personally in lawsuit if she or he does not advise the Company about harassment issue

Company can also be liable if supervisor knew about harassment but didn’t report it

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Performance Issues

Allowing relationship to get in way of work

Flirting on company time or through company means (i.e., email, internal chat software)

“Covering” for one another

Long breaks

PDA in the workplace

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Effect on other employees

PDA or other inappropriate behaviour in the workplace can make others uncomfortable

Attempt to hide relationship could lead to threats or mistreatment

Perception of unfair treatment or favoritism

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What should employees do?

Report relationship

Make sure relationship does not interfere with the workplace

Keep a record of relationship

Be honest if asked about relationship

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Case Law Examples Reichard v. Kuntz (2011): “non

fraternization policy” at workplace required disclosure of romances

– Employee begins extra marital affair at work

– Repeatedly denies affair to supervisors

– Co-worker confidante admitted it to supervisors

– Led to suspension, severe loss of trust, and dismissal for cause that was upheld in court

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Case Law Examples

Dillon v Dillon Hillstead Melanson (2015):

– Employer raised issue of sexual harassment as cause for dismissal

– Plaintiff’s extra-marital relationship with client at work had been allegedly disruptive; lied about relationship to bosses

– Cause was found by court in plaintiff’s dishonesty about affair

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Case Law Examples Dooley v. CN Weber Ltd. (1994):

– Plaintiff dismissed after engaging in second sexual relationship with a female subordinate in spite of clear warnings not to continue to do so

– Court found wrongful dismissal

– No evidence of detriment to company

– Not unreasonable for such relationship in modern society

– No existing policy

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Bottom Line

Employers are not to intrude on employees’ personal lives

But if it impacts workplace…

Need clear policies

Need to address concerns

Protect privacy

Enforce policies

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WORST CASE SCENARIO:

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But if it works out:

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Stuart E. Rudner

srudner@rudnermacdonald.com

416.640.6402 or 905.530.2484

Web: www.rudnermacdonald.comTwitter: @CanadianHRLaw

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