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#MeToo Makes Finding Love at Work Risky

Employers need to address the issue in their policies – but it’s different if you’re French.

June is a popular month for wedding ceremonies, so it is only appropriate that we cast a glance at how employers deal with the fact that many brides and grooms entered wedded bliss after beginning their relationships in the workplace.

Given how much time we spend at work, this shouldn’t be surprising. But in the era of the #MeToo movement and heightened awareness about sexual harassment, it also shouldn’t come as a surprise that employees and employers are more than a little wary about such relationships becoming known.

About 28% of those involved in a workplace romance never disclose it, according to a survey by the Society for Human Resource Management (SHRM). For those who did report it, most said their company was neither supportive nor unsupportive (29%) or was supportive (32%). Also, 17% of those who never had a workplace romance said they refrained due to concerns about sexual harassment.

“It makes little sense to forbid them. Instead, employees should be encouraged to disclose relationships,” says SHRM president Johnny C. Taylor, Jr. “This is the most effective way to limit the potential for favoritism, retaliation and sexual harassment claims.”

Every employer needs a policy regarding workplace romances, tailored to the company’s size, structure and needs, argues attorney Ashley E. Calhoun of the Akerman LLP law firm. “Well-crafted policies are typically welcomed by both employers and employees. Employers like them because they promote positive, productive work environments and help the company avoid the wide variety of claims arising in this context.”

A policy should address relationships that create a conflict of interest, such as those between subordinates and supervisors. Relationships between people in these roles is a conflict of interest for the supervisor because of the incentive for preferential treatment toward the subordinate. Even in its absence, the relationship encourages the perception that it’s happening, Calhoun stresses.

The policy also should require that when a subordinate and supervisor are in a relationship, they must disclose it to management or human resources so the employer can address any potential conflict of interest.

Policies also need to be tailored to the employer’s size and corporate structure. In large companies with multiple worksites, employees can be relocated. In smaller companies with only one worksite, the employees can be reassigned to different departments or teams.

Resolving these issues is challenging, Calhoun admits. “But, as with most human resources challenges, addressing them directly is the best approach to quickly, fairly and lawfully identifying and implementing viable options.”

Some employers require employees to sign contracts disclosing the relationship and affirming that it’s consensual. Contracts for subordinates and their supervisors will contain different terms, but both will affirm knowledge of the employer’s policies against harassment. Agreements often contain waivers of past and future claims, but employers should be mindful that such waivers may be unenforceable, Calhoun warns.

As you might expect, the French are different. Under French law, the employer may not as a manner of principle forbid romantic relationships between employees. This implies that employees have no obligation to disclose the existence of such a relationship to their employer, observes the international law firm of Baker McKenzie.

Although an employer cannot forbid innocent flirting, it must take steps to prevent sexual harassment, which can lead to dismissal for gross misconduct and criminal charges, including a criminal fine of up to €30,000 and two years in prison. Sanctions increase when aggravating circumstances are found, including abuse of power by superiors.

Also, even if the employer can’t ban romantic relationships, it can sanction an employee’s behavior when it impacts work. In France, the employer is allowed to punish favoritism, poor performance or a conflict of interest linked to the employee’s personal life.

TAGS: MHL Magazine
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