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By: Julie M. Capell Davis Wright Tremaine LLP
ONCE AN EMPLOYER BECOMES AWARE OF A CONSENSUAL, romantic relationship between two employees, the human resources manager, or other equivalent professional, should meet with the employees—separately—to discuss the office relationship contract. During these meetings, the company representative should fully explain the terms of the office relationship contract to the employees and confirm that the relationship is, in fact, entirely consensual. The employer should also give the employees the opportunity to review the contract and consult with an attorney before signing it. Unlike other contracts, executing an office relationship contract will rarely involve any negotiation because it contains straightforward terms and serves overall to acknowledge the consensual nature of the relationship. Continued employment for the employees, despite their romantic relationship, is considered adequate consideration for the terms and conditions of the agreement.
First and foremost, the employees should acknowledge that their relationship is welcome and consensual.
Next, the employees should acknowledge that they are aware that the employer is committed to providing a workplace free of harassment, discrimination, conflicts of interest, and favoritism, and that the employer will not tolerate unwelcome or offensive conduct, behavior that creates a hostile work environment, or sexual harassment. In other words, the employee must acknowledge that the employer is an equal employment opportunity employer, does not discriminate based on any protected characteristic, whether under federal, state, or local law, and that sexual harassment is strictly prohibited. Moreover, to help avoid retaliation claims, the office relationship contract should expressly state that the employee will not be subject to retaliation for ceasing a relationship with the other employee.
Employers should carefully consider how they want to avoid conflicts of interest between the romantically involved employees. The most conservative, and litigation adverse, approach is to prohibit the employees from having any ability to affect the terms and conditions of the other’s employment. Depending on the circumstances, this may involve a lateral transfer or change in job duties, or, at worst, a demotion or termination. If a demotion or termination is necessary, you should advise the employer to ask the employees to decide whom the employer should demote or terminate.
Specifically, if the employees are already in a reporting relationship when they disclose the romantic relationship, the employer should immediately remove that reporting relationship (i.e., transfer or change job duties). It is not recommended that the employer allow an office relationship between individuals in a reporting relationship. If the employees at issue do not have a reporting relationship, the agreement should specify that the employees will not seek out jobs where one of them would be in a reporting relationship with the other.
The employer should also decide whether to restrict this provision prohibiting the employees from affecting the terms and conditions of the other’s employment only during the duration of the relationship. To minimize exposure from discrimination or retaliation claims, it is considered best practice to leave the prohibition in place even after the relationship ends.
The balance of the office relationship contract should:
The office relationship contract should not go as far as stating that the employees expressly waive any sexual harassment claim against the employer, as such a provision would likely not be enforceable.
The employer may also wish to include an arbitration provision in the agreement, which would govern any dispute arising from the romantic relationship (but carefully consider state and local laws to ensure enforcement of the arbitration provision).
Julie M. Capell is a partner with Davis Wright Tremaine LLP and works with companies across the country to meet their labor and employment needs. She provides strategic guidance by crafting policies and procedures that protect employers and minimize the risk of litigation. Ms. Capell regularly counsels clients and presents trainings and seminars on personnel policies, wage and hour compliance, federal and state disability laws, sexual harassment, retaliation, and reasonable accommodation of disabilities.
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > Claims and Investigations > Practice Notes
For an annotated retaliation policy, see
> ANTI-RETALIATION POLICY (WITH ACKNOWLEDGEMENT)
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > Policies and Procedures > Forms & Guidance
For state-specific anti-retaliation policies, see
> DISCRIMINATION AND RETALIATION STATE EXPERT FORMS AND CHECKLISTS CHART
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > Claims and Investigations > Forms & Guidance
For guidance on developing a workplace relationship policy, see
> COMPOSING OFFICE RELATIONSHIP / FRATERNIZATION POLICIES
RESEARCH PATH: Labor & Employment > Employment Policies > Standards of Conduct > Practice Notes
For a detailed checklist on drafting arbitration agreements, see
> MANDATORY ARBITRATION AGREEMENT DRAFTING CHECKLIST
RESEARCH PATH: Labor & Employment > Employment Contracts > Waivers and Releases > Checklists