At our organization, two members of the executive team are married to one another. I’ve been tasked with updating our Employee Handbook. Many of the sample handbooks seem to have anti-nepotism or conflict of interest policies which prohibit employees from dating or being in a relationship with co-workers. Are we legally required to prohibit office relationships? Signed: In a Quandary Over Love
Dear In a Quandary:
Love may be a many splendored thing, but love is a battlefield, too. And therein lies the rub for every employers’ HR practices in this area. This is one of those topics where employer policies are all over the map, especially in the nonprofit world where it is not uncommon for agencies to be founded by families or spouses. So unfortunately (or fortunately!) there is no one-size-fits-all policy. However, there are some legal principles and practical matters to consider as you decide what policy best suits your agency in dealing with these real-life “love connections.”
People looking for a simple solution may advocate a complete no-fraternization policy. But this strident viewpoint ignores the reality of work/life blending supported by a careerbuilders.com 2010 survey that found 37% of workers have dated someone they met at work and 30% of them have married a workmate. Rather than adopting a policy that outright prohibits intimate relationships at work, you may find that a more workable policy strives to balance the needs of your organization with the realities of life.
The main legal risks with workplace relationships are sexual harassment, conflict of interest, and violence in the workplace. Outside of legal risks, there are of course management issues that can arise. I’ll touch briefly on the legal issues with some real-life examples.
Sexual harassment including for third parties
I recently handled a case where a male E.D. had a short-term relationship with a female subordinate which produced an unplanned child. This situation quickly turned into a management nightmare when the female subordinate had performance problems and a child custody battle played itself out in the workplace. The organization used kid gloves (pun intended) to address the real performance issues of the subordinate while enduring more poor behavior than would typically be allowed in the workplace in an attempt to avoid a lawsuit. Despite these efforts, the subordinate quit and sued for sexual harassment, and now the nonprofit is using more time and energy proving that the relationship was consensual, that there was no harassment, and that the performance problems were real.
Sexual harassment can also be an issue if there is a lot of lovey-dovey behavior at work; someone else can claim sexual harassment if they have to witness too much mushy stuff.
Under the law, employers are strictly liable for sexual harassment of subordinates by their supervisors. But between co-workers employers only have liability if the sexual harassment is unwelcome, severe, and pervasive, and the employer knew about it but failed to take prompt, corrective action. Of course you should have sexual harassment prevention policies in place to address these issues. Still, even where there is no legal liability, intimate relationships at work change over time and can be painful for everyone to manage.
Conflict of interest
Conflict of interest policies are commonly adopted by nonprofit agencies, especially since the new IRS Form 990 asks whether you have such a policy in place. Conflict of interest policies typically establish workplace ethics and codes of conduct applicable to directors, officers, and employees so that the nonprofit can monitor relationships that have the potential for an appearance of impropriety. It is not uncommon for such policies to restrict employment and business dealings with family members of executives or managers. Many policies require all employees to disclose the existence of intimate or familial relationships between co-workers so that a determination can be made whether there is a potential for a conflict of interest.
A recent case demonstrates the need for such policies. A senior manager was having an intimate relationship with a staff member not under her direct supervision, but whose compensation and work status would be directly affected by the policy decisions made by that manager. There was no conflict of interest policy prohibiting the relationship, so the senior manager asserted there was nothing wrong; but the executive team felt differently. They began excluding her from decision making because they felt she could not be neutral and unbiased. Ultimately, the senior manager resigned when she realized that the executive team had lost faith in her ability to function effectively.
Unfortunately, it is not uncommon for domestic violence to play out in the workplace. As a result of these headline-grabbing events, many employers consider prohibiting extra-marital affairs between co-workers. In our community, a love triangle involving married co-workers became aa few years back.
While an employer policy cannot protect against violent behavior, an employer who has a policy requiring reporting of such relationships between co-workers at least has the ability to monitor the situation and take protective steps if something is amiss. Although many states prohibit marital-status discrimination and some have legally protected the right to privacy, policies requiring reporting of relationships between staff are generally upheld if they apply equally to married and single staff members.
1. Adopt a policy prohibiting supervisor/subordinate relationships and those that pose a conflict of interest. This policy should be applicable to staff and board members. A sample is at the end of this article.
2. To enforce these rules, consider adopting a policy requiring employees to report existing and new intimate and familial relationships with co-workers to the HR manager or executive director so that a determination can be made if a conflict exists or if some change needs to be made in assignments or reporting relationships.
It’s hard to set a standard policy at which point a relationship should be disclosed (for example, should it be two dates or more or one?). We think a good gauge to use is when the individuals think the relationship is serious enough that if it were discovered their boss would question their judgment in not disclosing it.
3. If your organization has too few employees to make re-assignment a realistic policy, add a policy that reserves the right of the organization to choose one of the couple to terminate. For example, in a small organization, if the ED and the CFO become a couple, they could be given two weeks to decide which should leave, and if they can’t decide, then the board would decide.
4. Be sure you have a clear complaint procedure so that you can identify potential problems early before they grow into legal issues.
As a final thought, to HR managers who are confronted with this situation I offer this sage advice that they in turn can offer their employees: it’s never a bad idea to broaden your dating pool.
SAMPLE Conflict of Interest Policy Related to the Employment of Relatives
The company desires to promote positive working relations between all employees. To that end, the company will avoid actual or potential conflicts of interests in work assignments involving relatives or individuals with close personal relationships to minimize the potential for complaints of favoritism, lack of objectivity, or unprofessional, disruptive, or harassing behavior. While the agency does not have a strict rule prohibiting the employment of relatives or significant others, there are circumstances where the agency will decide based on the facts whether the potential for a conflict exists. For example, the agency generally prohibits relatives or individuals in close personal relationships from being in a supervisory relationship. All employees who enter into a close personal relationship with or become related to a coworker should report the relationship to their manager who will determine whether a conflict of interest exists. While efforts will be made to re-assign employees where a potential conflict exists, reassignment cannot be guaranteed.
Ellen Aldridge is a Labor and Employment Risk Manager for the Nonprofits Insurance Alliance Group where she provides free legal counsel for member nonprofits on how to manage their human resources in compliance with employment laws. Perhaps even more relevantly, she met her husband when she was volunteering for Save Our Shores and he was a staff grant writer!