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Office relationships: Does HR need to ask and do couples need to tell?

12.14.12

Remember the old adage about pornography? “I know it when I see it,” said the Supreme Court Justice Potter Stewart. Can the same be said of office relationships? What exactly constitutes an office relationship, and what rules—if any—should be applied to one? From judges to presidents, our society finds it incredibly difficult to establish definitions for anything having to do with sex. And, yet, sex constantly gets people in legal trouble…not to speak of other types of trouble.

So, despite subjective definitions that change with each generation or new court case, workplaces need to establish (and regularly update) their parameters of acceptable behavior. Yes, a firm has legal obligations to protect employees from sexual harassment and hostile work environments. It also has an obligation to protect its clients and itself from conflicts of interest. But beyond fulfilling the letter of the law, it’s simply in everyone’s interest to create a workplace that feels comfortable and safe. That goes for both types of offices—those that allow office relationships and those that don’t.

What constitutes an office relationship?
In real life, people’s relationships exist on many levels, not all sexual, which complicates the effort to write an office policy about relationships. Even non-sexual behavior can be unwanted or inappropriate. It’s often in the eye of the beholder (or the beholder’s spouse) whether or not a platonic relationship with a coworker crosses the line.

So, for the purposes of this article, an office relationship will be defined as two people sexually involved with each other, and we’ll discuss tips and challenges when developing policies regarding office romances.

Consider these facts (according to CareerBuilder.com and the Huffington Post) when deciding whether your office needs a policy:

  • 37% of workers have dated a co-worker
  • 32% have married a co-worker
  • More than 1 in 10 employees has admitted to having sex with a coworker in the workplace, while many more say they’ve thought about it, according to a survey from job search site Glassdoor.com

Define your terms
Within the boundaries of the law, every firm should determine its own definition of an office relationship. Even if the office prohibits them, employees need to know what precisely is prohibited. If relationships are allowed, the policies regarding them should reflect each organization’s unique makeup. The idea is to create a policy that’s realistic enough that it can be enforced in a reasonable, fair manner. So it should suit your firm’s culture.

But avoid being so specific when writing a policy for your firm’s population that you inadvertently discriminate against a protected class. The rules need to apply fairly to all couples no matter their sexual orientation, race, or other factors such as age (as long as no one is a minor—and you can never be too clear about this if you have interns).

Do consider the size and demographics of the firm when developing your policies. Think about the differences between a small start-up firm run by a group of pre-existing friends, a firm run by a husband-and-wife team, a small forty-person one-office firm, and a large firm with many practice groups and office locations. Each of these firms would have very different policies.

How to avoid being the HR police: Reasonable criteria and realistic enforcement
Think through the logical consequences of a policy—again, whether or not you allow relationships, because any policy will need to be enforced. Do relationships need to be reported, and to whom? If they’re entirely prohibited, or not allowed among superiors and their subordinates, what might be the disciplinary actions: transfer, censure, termination? Note: Every firm should have a sexual harassment policy, in addition to the office relationship policy.

Communicate clear expectations
The goal of a firm relationship policy should be to maintain a cordial environment for all workers—not just the ones in relationships—so make it clear that you’re not going on a witch hunt. Set a tone from the top for the whole firm. Demonstrate respect for all parties involved, and reiterate that HR maintains confidentiality.

Tough questions and straightforward answers
If you choose to allow office relationships, here are eight points to consider when establishing your guidelines. They are by no means comprehensive, but they are some of the most frequent questions. The answers reflect commonsense advice for how to best preserve workplace professionalism and help your firm avoid legal issues. You should always write a policy that conforms to your firm’s other employee policies, and HR should confer with the firm’s legal counsel in all matters such as this.

1) Conduct in the workplace: The workplace is a professional environment, and employees should behave in such a manner, which precludes any type of physical conduct between a couple. Flirting and favors should be avoided, as significant others should be treated the same as any other coworker. This applies as well to conduct on the telephone, email, and any other forms of communication. In addition to maintaining a professional tone, it’s imperative to continue to abide by the firm’s confidentiality and security policies regarding sharing information. This is true even for married couples.

2) Conduct during free work time (e.g., lunches): Conduct should be determined by the place, not the time. Behavior needs to conform to code anywhere on the office premises, at any time, even after hours or weekends.

3) Conduct at offsite work engagements: On business trips, can a room be shared between consenting adults? Unless the working couple is married, no shared rooms. Variation on this theme: Some offices will book two rooms, but not monitor who stays in which room. Any work function, whether at a conference center or hotel, should be treated as an extension of the office space. In some firms, even after-work gatherings at restaurants, bars, or holiday parties are considered an extension of the office space and are thus subject to office policies.

4) Does the relationship need to be declared within the firm? This is another question that will have to be answered relative to the size and culture of the firm. If declaration forms are part of the policy, then they must be included in the Employee Handbook of policies and procedures, and discussed during sexual harassment training. Should a relationship be allowed between two members in the same practice area? Again, this would depend on the firm and its policies. Is it generally recommended? No. The perception of a conflict of interest or favoritism could be too great.

5) What happens if the relationship is between a superior and subordinate (in any part of the firm)? The firm must decide according to its own office structure. No matter the decision, it should be articulated to employees, discussing the reasons the firm does not allow such relationships, or, if it does, how to avoid and resolve any potential conflicts of interest that a reporting relationship might create. This is particularly true when deciding whether partner/employee relationships are appropriate for your firm. Most firms prohibit relationships between superiors and subordinates. If yours does, be careful to specify that any disciplinary actions should be applied fairly no matter a person’s rank in the firm. This is true for all firms, but ones with extensive title structures or many partners (and thus higher odds for relationships across the reporting structure) might want to put additional language into their policies to this effect.

When trying to decide whether your firm should allow such relationships, consider these questions:

  • How does the firm feel about blurring personal and professional lives? Some people don’t mind, as witnessed by family-run businesses.
  • What are the potential conflicts of interest or perceptions (within and without the firm) of conflicts? Consider the sharing or security of confidential client information and industry regulations. (Financial and law firms, for instance, often stipulate that certain employees are not allowed to contact employees in certain other areas of the firm, period, in order to avoid trading insider information.) In some fields, such as academia, such relationships can violate professional ethics.
  • Consider the possible effects on decisions about salary, employee reviews, promotions, or bonuses. Avoid any real or perceived favoritism or discrimination.
  • Are there any other legal ramifications? Consult your Human Resources specialists and legal counsel before and after you draft your policy to review its procedures and language.

Here is a version of a standard policy adapted from a policy posted on the Human Resources Networking Group (hrng.ca):

Employees may be permitted to work with relatives or significant others in the company (firm) as long as the following conditions do not exist:

  • An employee cannot supervise or be in a reporting relationship (direct or otherwise) with a
    relative or significant other
  • An employee cannot work in the same department with a relative or significant other
  • There cannot be an actual conflict of interest or appearance or potential of a conflict of interest

During their employment with the company (firm), should two employees become related through marriage or common-law relationship, their employment may continue as long as it does not result in one of the conditions listed above. If one of the conditions should occur, attempts will be made to transfer one of the employees to another position within the company (firm), if available. Management may in its sole discretion allow both employees to continue in their positions; or if such an accommodation is not feasible, management will discuss alternatives with the employees.

6) What happens if the relationship goes sour? This is why many firms opt for a disclosure form with their policy. When the initial disclosure is made, HR has an opportunity to discuss what happens if the relationship ends. From the firm’s perspective, it is generally not responsible for anything beyond ensuring that the workplace remains comfortable and safe for all parties involved, in or out of the relationship.

7) What happens if the relationship is heading for a more permanent union? It depends on the firm’s nepotism policy. Many firms treat married couples the same as domestic partners or dating couples, in that they still need to avoid conflicts of interest and sexual harassment. Some firms require one spouse to leave the firm. (And still others have been known to hire back the spouse as a “contractor.” Call it a nepotism work-around.)

8) What happens if you’d like to institute a policy now, but relationships already exist in the firm? It’s obviously easier to have a policy in place before a situation arises, and you don’t want your policy to appear to target a specific couple. Once you create a policy, however, your policy should be applied fairly to all of your employees. Depending on how strict your policy, it could mean transferring an employee or asking one half of a married couple to resign, so you’ll want to craft your policy to be one you can reasonably enforce in a variety of situations.

Can an office mandate morality?
Affairs are not just the stuff of bygone eras, like the television show “Mad Men.” Some organizations can legally state whether their employees may or may not engage in sex outside marriage (such as religious institutions), but it’s a vexed area that raises questions of morality and personal freedoms. For instance, in some states, firms who forbid employees from smoking off duty may end up in court.

Does a one-night stand count as a relationship under the terms of the policy? It doesn’t last long enough to file a declaration form, but it certainly could influence future interactions between employees, especially if one individual reported to another. Talk about the walk of shame…down the hall to HR’s office to sign a form about last night. HR needs to manage its own expectations, as well as its employees’. An illicit affair is exactly that—illicit. And probably will remain so, no matter how many forms you include in your Employee Handbook.

It all comes back to the definition of a relationship. If your company can do what even the Supreme Court has trouble doing—set ground rules for sex—you’ll save yourself potential litigation and promote a better working environment for all your employees.

Originally published in the Association of Accounting Administrators newsletter.

Topics: human resources

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