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The Summer Wind -- Workplace "Love Contracts"

Written by: Jennifer L. Parent

Published in the Portsmouth Herald

Workplace romances can be common given the amount of time people spend at their jobs.  But as Neil Sedaka once sang, breaking up is hard to do. When a consensual relationship ends or goes sour, employers are faced with potential sexual harassment and retaliation claims. With workplace summer parties and picnics planned, Employers should be ready for these issues.

In a 2011 survey conducted by Vault.com, 59% of employees admitted to having an office romance. 63% of those answering said that they would do it again if provided the opportunity. Even a shaky economy would not have any effect on 65% of those considering a romance. Indeed, a search of the internet offers an array of “how to” guides on dating in the workplace. Not everyone is happy about love, however. Of those surveyed, 38% believed that a coworker had gained a professional advantage because of an office relationship.

When it comes to office romance, some companies choose to have no policy and to rely on their anti-harassment and retaliation policies and training programs already in place. Other companies handle workplace romance by having a written anti-fraternization policy that prohibits dating all together or prohibits dating between supervisors and subordinates or within same departments.

Beginning about ten years ago, companies began considering a third option – “love contracts.” While contracts between two individuals may not appeal to your romantic side, employers see them as a way of protecting both the employees involved and the company from discrimination claims. They assist the company in defending a later claim, although they may not prevent all litigation.

A love contract is a document signed by the two involved employees and the company that affirms the voluntary and consensual nature of the relationship and reiterates and acknowledges the company’s anti-harassment and retaliation policies.  It affirms that neither of the employees has been forced, harassed, or threatened into the relationship. It also establishes appropriate and professional office behavior during the relationship and after if it ends.

A love contract is not perfect. It requires a policy of reporting to HR the consensual relationship and then reporting when the relationship ends. This does not always happen.

New Hampshire courts have not yet ruled on the enforceability of a love contract. The value of the document, however, is the acknowledgments made by the employees. The love contract serves as powerful evidence that the relationship was consensual, that the employees were aware of the company’s sexual harassment and retaliation policies and agreed to report any harassment or retaliation if the relationship ends, and that the company took steps to maintain a workplace free from sexual harassment and retaliation.

When presenting such a contract, it is important to meet separately with each individual involved.  Both individuals should sign and commit to the love contract. Depending on the circumstances, some of the following provisions may be appropriate.

•  Both confirm the relationship has been and continues to be consensual and voluntary.
•  Company’s sexual harassment, retaliation, and other applicable policies are reiterated and acknowledged.
•  Both agree to act professionally at work and to not conduct any public displays of affection or other inappropriate personal contact while at work or at work functions.
•  Both agree to refrain from favoritism and conflicts of interest.
•  Both agree to not use company property inappropriately or contrary to the company’s policy, including but not limited to, its computers, email, voicemail, cell-phones or other devices. Both individuals acknowledge the company may monitor its property at any time.
•  Both agree to report any harassing conduct if the relationship ends.
•  Both agree to treat each other with respect if the relationship ends.
•  Both agree not to retaliate if the relationship ends at either individual’s decision.
•  Both agree to notify HR if the relationship ends.
•  Each individual acknowledges sufficient time to consider fully and understand the love contract and each may want to consult with an attorney before signing.

Love contracts are not appropriate in every circumstance and they should only be used in suitable situations. A company interested in developing a love contract should consult with counsel. Any policy should apply to and be enforced uniformly among employees regardless of marital status, gender, and sexual orientation as well as other legally protected categories.

Whatever an employer decides on this issue, there is no substitute for training managers and supervisors on the risks of romantic involvement with employees. Companies should have anti-harassment, retaliation, and anti-discrimination policies in place and disseminated company wide.  Training of managers and employees on those policies and reporting procedures is also important.

Jennifer Parent is a Director in the Litigation Department of McLane, Graf, Raulerson & Middleton, Professional Association. Jennifer can be reached at (603) 628-1360 or [email protected].  The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.  www.mclane.com


 

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