E7: Workplace Romance

In this episode host, Thom Jennings and resident expert Kathleen Jennings discuss how to manage workplace romance. It is a lively episode with terms like "sex police" and "love contracts" discussed. Thom presents another of his employment experiences, but this one has a twist.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law. Inner Popular Cover Your Assets blog if your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:34):
Hello and welcome to the Cover Your Assets podcast. I am your host Thom Jennings, and I'm here of course with our resident expert Kathleen Jennings, live from the lovely state of Georgia. Now we're here in New York and it's it's March, so of course it's snowing here, but I imagine in Georgia the weather's a little bit better on this wonderful March day.

Kathleen Jennings (00:56):
The weather is considerably better than that, Thom, and I'm sorry to hear about the snow, but I'm not surprised having grown up there with you as a matter of fact.

Thom Jennings (01:06):
Well, one of the things that snow brings on is romance. And of course, you know, on a nice cold day, you wanna sit on the couch and snuggle, and who knows, maybe you'll be snuggling with your coworker. And of course, the theme of our podcast today is related to that cover Your Assets is indeed the Labor Law and Employment Podcast. So today we're gonna talk about, and I'm gonna use my Barry White voice, the workplace romances. So first and foremost, I will ask you probably the question that is on most employers and our HR person's minds. What are the restrictions when it comes to employee dating that an employer can legally institute? And maybe what are some of the, some, some of the things that they cannot do in terms of workplace or romance?

Kathleen Jennings (02:02):
Well, Thom, what I would say is that considering that most people spend more time at work than any place else, romance is bound to happen because that's where you're gonna meet folks. So what employers can do is just manage the consequences of those romances so that they don't get sued as a result of those romances or have human resource nightmares as a result of those romances. So one of the most important romances that an employer does not wanna see in the workplace is a romance between a supervisor and a subordinate because you have an inequality of power. And so it is possible that after the romance dies, because not all romances live forever, it's possible once that romance dies, that the subordinate employee could claim that the supervisor coerced them due to the unequal power into having that romance and that subordinate may file a charge of sexual harassment based upon that. So that is the type of romance you really do not want to have supervisors dating subordinates, especially subordinates in the direct line of comma chain of command.

Thom Jennings (03:27):
Well, and, and I think the other thing that, I know we actually discussed this in previous episode, I think it was, it may have been same sex sexual harassment in the workplace in terms of employee dating and subordinate and supervisor relationships. But you, I I do, as always, I have a, a couple of different scenarios that have come up in my employment life and one, I

Kathleen Jennings (03:49):
I could see you as a big workplace romantic, Thom. I'm sure you have many stories.

Thom Jennings (03:55):
I was the, the don one of every place that I worked. I don't know if that was the proper accent to do, but so I actually, there was a situation, this, I don't know if this would necessarily fall neatly in the category of workplace romance, but I had, I worked at a restaurant where the wife of the general manager of the restaurant was indeed the bookkeeper. And one of the things that the wife was doing, his bookkeeper was as she was submitting for vacation checks for employees that no longer worked there, and she was cashing the, the vacation checks for herself and putting them in hers and her husband's bank account. And of course, with the husband being the general manager who oversees all the books she was able to, to easily get away with this. And to the best of my knowledge, to this day, she was, she was never caught.

Thom Jennings (04:43):
And I, but I think it brings up the case where now my wife and I, we worked together at a place a couple years ago and she was in the finance department and I was a teacher, so we didn't work directly together, but I re remember reading the policy manual and it said that two people in the finance department could not be in a romance together, because again, it goes back to that issue. It's not just sexual harassment. If two people are in cahoots, it's gonna be a lot harder for you to deal with that situation. So if I'm dating somebody and they're robbing the place, or vice versa, you're less, less likely to have that person get caught because now you have two people that are co-conspirators. I love that term, co-conspirators.

Kathleen Jennings (05:27):
Yes. And you're probably going to have two people if they're doing that kind of thing, that are ultimately going to be terminated for that bad behavior once you find out.

Thom Jennings (05:37):
So, but, but again, is that in terms of preventive policies, you know, policies that will stop something like that. I mean, would you recommend employers make sure that there's not two people that are either dating or married that are handling finances or anything delicate within an organization? It could be be trade secrets, you know, anything like that?

Kathleen Jennings (06:01):
A lot of employers have policies that either prohibit certain relationships depending on department or chain of command or something like that, or at a mom require employees to disclose these types of relationships. And that way the employer is aware of them and the employer can manage the potential consequences of that relationship. Not only do we have to worry about possible misconduct, but maybe just favoritism or even perceived favoritism in the workplace that could have an impact on employee morale. And then again, the sexual harassment situation that could come up. What employers do need to be aware of is if they have two employees that are in a relationship and the policy requires that they work in different departments or different parts of the company, the employer has to be careful not to discriminate against a class of employees such as women by automatically requiring the female employee to be the one that has to either quit or transfer. It has to be a kind of policy that does not discriminate on that basis or on the basis of age or gender or anything like that. So those types of decisions need to be very carefully considered, possibly with counsel to make sure that you don't have a discrimination claim coming out as well.

Thom Jennings (07:36):
And I, I I, you mentioned disclosure, so I think that's, I think that's fairly common in most workplace where if two employees are in, in a relationship, a romantic relationship, it at some point they have to let the employer know. So a couple of things down that, that thought process first of all, it, at what point do you really consider it a relationship? So for example, I'm with a coworker, maybe I go out for dinner with her, or we go out for drinks and it's a very casual dating relationship, but maybe it's not a committed dating relationship. I mean, I, I mean it may even have gotten to the point where we are sexually active together, but we're not in a committed relationship. I mean, what is the definition of romantic relationship as it relates to the workplace, and at what point is the employee obligated to report that to the employer?

Kathleen Jennings (08:30):
I think that's a great question, Thom. And I think that is really something that the company has to consider, especially now, because we have a lot of free flowing types of relationships. People don't just consider romantic relationships to be a completely monogamous relationship. Maybe they have a friends with benefits relationship maybe they're in a poly relationship. There are so many different types of relationships out there that the company needs to consider. At what point do we want people to disclose that they have some type of relationship? Maybe it's when people start sleeping together maybe it's after a couple dates. I don't know. I think it has to do with, at what point does it look to all of the other coworkers as well as if something's going on between these two people. It's very, obviously there's either a romantic relationship or a sexual relationship or both.

Thom Jennings (09:31):
And well, I think where these situations could particularly tricky is if you have two employees that are both married to other people and they're clearly engaged in a relationship. And I think in many cases, you're gonna have people that are working together that are in other relationships that may be carrying on this romantic relationship, even on their lunch hour for that matter. So that leads me to the question of, you know is there an obligation maybe on the other employee's part to report these types of relationships? And can you really do anything to follow up if an employee says, Hey, you know, it looks like Bob and Joan have been taking really long lunches together and they come back and, you know, Jones here is all messed up, so something's going on on lunch beyond just having a little bit of Burger King.

Kathleen Jennings (10:19):
I would hate to put the onus on other employees to report on the sexual activities or alleged sexual activities of their workplace, of their coworkers. If an employee, I think you can encourage employees to report things like if somebody is abusing the time system, are they taking an extraordinarily long lunch? Are you seeing two employees in the office together with the door closed for long periods of time? Those so you can have employees report behavior that they're not comfortable with, perhaps, but I wouldn't put the, the burden on employees to be the sex police and start ratting out their fellow employees because they might be in a relationship.

Thom Jennings (11:13):
The sex police, I love that term,

Kathleen Jennings (11:15):
The sex police, who wants to be, well, I mean, there may be people that wanna be members of the sex police. I, I don't know, but I don't know that you'd wanna deputize your employees as members of the sex police.

Thom Jennings (11:28):
I had actually, I'd actually applied to the Sex Police Academy, but I was, I was rejected, which was a very difficult time in my life. Maybe we'll do that for a future episode. But all kidding aside, when we're not talking about sex police you know, back to that same scenario, obviously you don't want to have your, em your employee's report and be the sex police and monitor everybody's behaviors and all that other stuff. But that kind of goes back to what we talked about earlier. So, you know, but we'll go back to Bob and Joan. So Joan is also a fairly new employee, and guess what, Joan just gets a promotion over Jane and Jane gets upset because clearly, you know, she's seen all this activity that's gone on. So this creates a very sticky situation. And could it also be, though, now you have to balance that between, is Jane just making stuff up because she feels that she has been unfairly discriminated against because she's not in a relationship with her supervisor? How do you mitigate those circumstances? Or is that just one of those things that kind of happens in the workplace dynamic and you just have to manage it as it comes up?

Kathleen Jennings (12:32):
You really don't want that to happen in the workplace because if an employee such as Jane alleges that the only way that she or another female employee can get promoted is by sleeping with the boss, then you have a potential sexual harassment claim. So you don't wanna have a situation where someone who is sleeping with a subordinate is promoted by the superior that the, let me back up. We don't want a supervisor promoting the subordinate he or she is sleeping with. It just looks bad. It looks bad to everybody in the workplace, and it does raise potential claims of sexual harassment if that is the perception among the employees that the only way to get ahead is to sleep with this person.

Thom Jennings (13:25):
So that's interesting. Yeah, I never really thought about that. So you can make a claim of sexual harassment even though it's not overt. So for example, you didn't and my supervisor, you know, I'm up for a promotion with another person who's, you know, same level experience, all that kind of stuff, but the boss is dating my coworker, even though I personally am not getting harassed, would I be able to make a claim of sexual harassment because it's implied that the only way that I would get a promotion is by sleeping with my supervisor. But by the same token, my supervisor could be, you know, not attracted to men, or I could be older than my, than my coworkers. So how does that all work?

Kathleen Jennings (14:08):
Well, it would go to the factual situation of the workplace. And if there is a pattern where the folks that are getting promoted are also the folks that are dating those supervisors, making the decisions or sleeping with the supervisors, making those decisions, it is possible that the, the folks who are not getting promoted and are not involved in those relationships could claim, well, if that's the only way to get promoted, that's sexual harassment. Because otherwise I have to be coerced into this type of relationship in order to get ahead. And that's just not right. It's not good for morale either. But, so you never, never wanna have a supervisor make any kind of substantive decisions about an employee that he or she is dating or sleeping with because it just looks bad. You never know how much those decisions are influenced by that relationship. No matter how hard that supervisor claims that they can be impartial, they can't. And that's why they should never, never make decisions about someone that they're dating or sleeping with. I can't say it enough. I've said it a lot already.

Thom Jennings (15:23):
You have said it a lot. Absolutely. But it's good. We need to, it's important, I think you've said the term sex police more than you said that though. But we, we have definitely talked about that. You know, don't

Kathleen Jennings (15:33):
Just don't do it. You like the sex police. I do. That's, yeah, we can talk about love contracts as well. Love. That's another,

Thom Jennings (15:39):
Now you mentioned love contract. Now, now there's a term that I'm not entirely familiar with, but it, it sounds interesting. So I was gonna ask you another question, but go ahead. Why don't you discuss with me what a love contract is?

Kathleen Jennings (15:53):
Well, a love contract, first of all, would be distinguished from the Love connection. The famous old TV show. A love contract would be a written document that two people, two employees who are in a relationship would sign that would acknowledge the terms of their relationship, acknowledge that the relationship is voluntary, particularly if they are at different levels in the organization. And then it would also set out certain terms and conditions for them to follow, such as if one of them is put in a position of authority over the other, they would have to perhaps make a decision. One of them would have to change jobs those kinds of things just so that they acknowledge in writing, because lawyers love to put things in writing and why not the best way to protect your assets that way they have know, acknowledged in writing that they are in a relationship. These are the the rules we're gonna follow. And if they don't follow those rules, then they can be disciplined.

Thom Jennings (16:58):
And I, I, I believe that there was a similar contract that existed in a company my wife and I worked together at in, in terms of, you know, we, obviously we were already married, you know, same, same last name and and whatnot. But I don't believe I ever signed it, but I had heard that there was something that existed like that. I mean, I, I, is that something that is fairly common now in terms of at least saying that we acknowledge that this relationship because a as well, not to complicate situations, but the world is kind of a, a crazy place. You can have a husband and wife that worked together in the same workplace that are no longer together for that matter.

Kathleen Jennings (17:35):
I think it's the kind of thing that it's good to have, especially if you have folks, not necessarily for folks just at an hourly level, but once you start having folks in supervision or management or particularly upper management, it's a good way to protect the company and also lay out these are the conditions for you to be in this relationship with this other person who works here. We acknowledge that these relationships are gonna happen and we want you to follow these rules, protect yourself from litigation and protect the company from litigation.

Thom Jennings (18:11):
And one last thing related to this particular topic, I I, which I think is important to touch on, I believe we touched on it on a previous issue as well, is the potential for domestic abuse amongst employees and having to deal with that as well and having that spill over into the workplace. Is there anything that can be done that can mitigate that? And what could potentially be the implications on either one of the employees, either the abuser or the abuse? Because this could, this obviously is gonna be stuff that's happening outside of work, but I mean, verbal abuse can very easily happen within the workplace as well. So how would an employer handle a delicate situation where there's clearly a domestic abuse situation going on? Is there any recourse as far as removing the, maybe we will say accused abuser or the, the a person that is appearing to be the person that is committing the abuse?

Kathleen Jennings (19:07):
I think the best way to approach it is to focus on the conduct or in this case misconduct. And if there is someone who is engaging in verbal abuse in the workplace, regardless of whether they are in a relationship with a person they are verbally abusing, that needs to be addressed. Because that can be anything from domestic abuse to sexual harassment to workplace bullying. And those are things that you do not wanna have in your workplace. It makes your workplace toxic. So I would recommend addressing the conduct and if someone is making threats or someone is doing the types of things that are considered illegal, then maybe the police need to be called as well. You wanna encourage the person who is at the, the receiving end of the abuse to take all measures that they can, including getting a protective order if necessary.

Thom Jennings (20:06):
And boy wonder, I mean, how would that work if you had an order of protection against somebody and you worked in, let's say, within close proximity at the workplace? I mean, what is the, the employer I assume, has to do something in terms of separating those employees, but yet what if they work in jobs that are so close together that there's nothing that they can do? I mean, are you able, I suppose it would depend on the state, but that, that's gotta be a very difficult situation to deal with.

Kathleen Jennings (20:32):
I know in Georgia, if, if I have an order of protection against somebody and they violate that order of protection, they will be charged with felony stalking. So it would be in their interest to stay away from me, even if we were GL together, they're gonna have to find a way to avoid coming into contact with me.

Thom Jennings (20:57):
Yeah, and I guess I get those, those are situations that probably the, the court would be aware of as well. So maybe there would be something put into the order of protection in terms of, you know, if the one employee still had to go to work and all those other types of things. So, interesting stuff and, and as we've noted as, as these these episodes we, we progress and we do more of them, you realize that there's so many different things that, that just all come into play. I think every issue involves so many different scenarios. You know, we were just talking about workplace romance, but obviously there's situations with you know, sexual harassment, things like that. And I guess the final one, cuz we actually, this is a topic that we're gonna have for another day, is retaliation. So let's say I had reported what I think is an unfair workplace romance between two people or whatever. And my supervisor gets wind of it and then starts trying to, you know, get me fired and all that kind of stuff. Would that fall under the category of retaliation?

Kathleen Jennings (21:52):
It could, absolutely. But you know what? I think we should address that in a completely separate podcast,

Thom Jennings (21:59):
And that was a preview of a completely separate podcast. Now this is the point of the, of the, of the podcast where you were supposed to naturally transition into saying, do you have a, a personal story. So I'll let you try to go ahead and do that right now.

Kathleen Jennings (22:13):
Well, Thom, we've already established that you are a workplace romantic. So I am guessing that you have several stories to choose from of your workplace romantic relationships. Is there one in particular that you would like to share with our listeners?

Thom Jennings (22:31):
Actually, yes. And this this is I think one that, that most employers will find interesting and something that that is a little bit more complicated and doesn't, it involves me indirectly, but here we go. Here's the situation. So there was this young wor young woman that I worked with when I was a restaurant manager for, and I won't name the company, I'll just say that it started with Olive ended with Garden. Did I do that? No, it's okay. Olive Garden was fine. So I was working as a restaurant manager for Olive Garden, and they had a very strict policy at the time. This is 1994, to be exact. And it said we, well, we were hired. They, we signed an agreement that said we will not date anyone on the staff, like a wait staff or whatever. So obviously being a, a male manager, predominantly female wait staff everybody being in her thirties, twenties, you know, all that kind of good stuff, some things happened. So now at the time I was separated going to look like I was gonna be divorced at that point. And so there was this young female that I was pretty good friends with. Her name was Tia Beautiful.

Kathleen Jennings (23:32):
How, how young Thom?

Thom Jennings (23:34):
I would say, I mean, she was, I'll be, she was a college kid and I mean, I was like 27, so I mean she was like probably 19, 20 years old. Anyhow Tia and I were, I mean, we were friends and, and whatnot. And so we were, we were hanging out. I think we had drinks after work or something, and at some point somebody reported that the two of us were involved in a romantic relationship. So a and, and actually, actually it was my ex-wife's parents reported that I was in a relationship with her because they were trying to get me fired. So hence a investigation was commenced and they interviewed staff members to see if there was indeed a romantic relationship. And indeed, what do you think, was there one or was there not one?

Kathleen Jennings (24:18):
I'm gonna say there was not one

Thom Jennings (24:20):
You would be incorrect. There was indeed a romantic relationship between Tia, I was and a restaurant manager, but unfortunately it was with my coworker who subsequently was fired <laugh> because they found out that he was sleeping with her.

Kathleen Jennings (24:37):
So, so the complaint against you Yes. Resulted in another dude getting terminated?

Thom Jennings (24:44):
That is absolutely correct. And, and the guy's name, the guy guy's name was Rich. And let me tell you something, rich was a good looking guy. And you know, if you looked at me and you looked at Tia and you looked at Rich and you looked at Tia to me, I don't even think why they needed to have an investigation, they should have just said, oh, clearly she's dating Rich and not Thom, you know, but anyhow, that, that is, that is the, the truth. I felt, I felt terrible about it because rich was rich was a pretty good guy. I actually, you know, I'm, I'm being very disingenuous. Rich was kind of a jerk. I mean, when he got fired, I, I didn't feel upset at all. <Laugh>. Wow.

Kathleen Jennings (25:21):
Well, and, and let me say this about your conduct, Thom, as a manager, I, I think we've talked before, I think we talked in our harassment podcast about not putting a target on your back. And in that situation, when you are out having drinks with a subordinate employee, it certainly gives the impression that you might be in a relationship with her. What it does is it puts the proverbial target on your back, which is why the parents of your ex-wife or soon-to-be ex-wife, were able to lodge the complaint in the first place. So that's the other lesson I think we need to learn from that, which is don't put yourself in a situation that looks like something that it may not be, but could be used against you.

Thom Jennings (26:10):
And I'm going to agree 1000% on that because, you know, up at that point, I was warned a lot of times by my general manager at the time, he always said, he said, listen, I don't care what anybody tells you, I know it's okay, but if if the group goes out af for drinks after work, it's not a good idea to do it. I can't stop you from doing it, but it could cause you some problems down the road. And what's interesting is, rich, you know, rich and Tia had this romantic relationship, and Tia and I were, you know, we were, we were friendly and everything, but I honestly had no clue until I came in and Rich had been terminated for having this relationship with, with her. So but yeah, that was a, that was a weird situation for sure. And then of course everybody was like, oh, I can't believe it, you know, because they, they thought I was gonna be the one that was gonna be fired. But, you know, I thought, I thought that

Kathleen Jennings (27:01):
Was a good twist.

Thom Jennings (27:02):
I thought being an ugly guy that nobody would suspect me. But, you know, sometimes beautiful women love, love the ugly. I mean, look at my wife, she loves me.

Kathleen Jennings (27:12):
She does love you. And paint it back when you were, when you were younger, much, much younger, you did have that head of beautiful hair.

Thom Jennings (27:22):
Oh, at this point it was already going. It was, yeah. Oh, I'm at 27.

Kathleen Jennings (27:25):
Sorry. I was trying to help you there. Yeah,

Thom Jennings (27:28):
Yeah. Not help me. But anyhow this was definitely a spirited episode and thankfully we're starting to get some listens and some p some followers on our Facebook page, all that kind of good stuff. And please don't forget to share if you like this, and honestly, we'll, we, we'd love some, some email, some letters, some questions, anything like that. So we will close as we always do. How about some contact information there, resident expert?

Kathleen Jennings (27:53):
Sure. Well, I can always be contacted at my firm email address, which is kj j@wimlaw.com.

Thom Jennings (28:02):
And of course, our takeaways from today are if you could give three points that people should take away from today's episode, they are, go ahead. Shoot,

Kathleen Jennings (28:12):
Don't let a supervisor make any decisions about a subordinate that they are in a relationship with. Don't make your employees members of the love beliefs and don't put a target on your back.

Thom Jennings (28:29):
Excellent. All right. And once again, from myself and my sister, thank you once again for listening to cover your assets.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.