Episode 49: Employer Do's/Don'ts of Workplace Dating

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Kal Chamber's general counsel and executive Vice president, and with me on the podcast today is Jennifer Shaw from the Shaw Law Group. Welcome back, Jennifer.

Thank you. It's great to be here.

Well, I gotta tell you, we just got through Valentine's Day, or really Valentine's Day weekend because it fell on a Friday this year.

I'm sure the restaurants are all very.

Oh, I'm sure they were so happy about that. And. And even though the red roses are starting to dry up and the chocolate is mostly eaten by now, or completely eaten by now. Right. Professions of true love are probably still percolating around the office. It's one of the best topics to talk about. Yes, love is in the air. So let's talk about it on the podcast today. Let's talk about dating and managing relationships in the workplace.

Well, it's a great topic for any time of the year because the fact of the matter is we meet people at work. Right. People are more likely to meet a significant other or a spouse at work.

Simply because we're there all the time. That's right.

We spend a lot of time at work. So it's a good thing for employers to really think about from a strategic perspective.

Well, they're not only going to meet him at work, but with online dating.

Now, they're going to talk about him at work. They're going to swipe them at work.

Swipe left, right, up and down. I don't even know all of it.

Well, and here's the thing that's so interesting. When you look at statistics, the vast majority of these relationships do not last really beyond three months. So when you think about it from that perspective, there's going to be a lot of hooking up and a lot of breaking up.

I mean, I'm just impressed that you even know the statistics on this. You're right, though. There will be. Because when you think about online dating, and I haven't partaked myself, but there's a whole pool of candidates, if you will.

Yes. Here's what's amazing. We have done investigations where the person was using online dating and actually had a match with someone in the office and didn't realize it. So then there's all this discussion about, oh, wait a minute, this person works with me. Well, I better go find this person. She's on the third floor. It's doing everything except working.

Okay, so let's. This is like too much fun. There's too much to talk about here, let's first talk about just dating in the workplace. Let's just forget about apps and online. What are the issues with dating in the workplace to begin with?

Okay, Three big things we want to think about. Number one, if you have a manager or supervisor, you can preclude them from dating someone in the workplace if there's a potential conflict of interest. Now, some of you are wondering, why can't we just preclude them all together? I give them a salary, Can't I tell them what to do? California is very unique because we have a constitution in California because that includes a freedom of association that is very unlike most other states. And certainly the federal constitution only applies, right, when you have a government actor. This stuff applies in the private sector. So the first thing to know is you cannot outright ban people from dating in the workplace, even if they're managers or supervisors. There has to be an actual or potential conflict of interest. So that means certainly issue number two. When you have non supervisors and folks who are rank and file, non management folks, you cannot regulate their personal relationships. What you have to regulate is their conduct. So you're very unlikely gonna have a conflict of interest when you're dealing with two non supervisors. But you could have a lot of other problems coming up. So that's issue number two. Issue number three is to realize that when people engage in these relationships, they're often not thinking clearly. And I don't mean this in a negative way. If you do brain scans of people who have recently had a new romantic relationship, their brain looks different, right? They're focused on the person. They're waiting for the next message to come in. They can't wait for the dinner they're having that night. All of which is terrific and awesome, but screws up all kinds of things in the workplace. So it's really, I think, important for employers to think about, okay, what's my policy going to be? What's going on? What can I preclude? What can I not preclude? And make sure that in your policy, you say, if you fall in love with someone at work, if you're interested in pursuing a relationship, that's fine. Just let HR know so we can see. Is there a reporting relationship we need to change? Is there something that needs to be dealt with? We're not judging. We're not in a judgment universe, right? We're trying to just say, okay, how can we accommodate this relationship? And if it lasts, great. However we want to define lasts these days, it's if it doesn't, well, let's figure out what to do about the consequences. So that's a big issue for employers to think about is what should their policy be?

And that's a great starting point too, because that's what most employees receive when they first start work. The employee handbook. And it sets the tone and it lays out the rules of the road, so to speak, before work even begins.

That's right.

Okay, but that's always in that perfect world.

Yes.

So when we find out that there might be a relationship, and oftentimes it's the boss with a secretary or the married boss, the married boss with the married secretary or co worker or project manager, whomever it might be, it's a subordinate. And that always gets leaked out. There's rumor and whatnot, but let's just say it's not salacious and it's just two co workers.

Right.

What are some ways within which employers can manage those types of relationships?

So I think that the first thing that needs to happen is someone in HR personnel needs to talk to the two individuals separately. For first of all, is this relationship consensual? You'd be surprised to see what the power dynamics are at work, even when you're dealing with non supervisors. So is somebody feeling compelled? Is somebody feeling uncomfortable? Let's check that out first. Second of all, let's evaluate. Do they work together? Do they need to rely on each other to get the work done? Because when this relationship goes bad, which statistics show it probably will, how are we going to account for the fallout? So it's good to know up front, all right, what's going on? And if they live happily ever after and have two cars in the driveway and a crock pot and three kids, we probably don't want them working together necessarily at that point either. So it's good for the organization to take a step back and think about, all right, what are their working relationships? And might there be some changes that we need to make?

And let's talk about what is so much fun to talk about. The love contract.

Oh, yes. Love contracts are the best. Okay, so this came up years ago where employers got the great idea to say, hey, he loves her, she loves him. Let's get them to document it. And unfortunately, this was very stereotypical. They used it with the male executive who was having the relationship with the female subordinate. And they wanted the subordinate to sign the love contract saying, I love him. I'm doing this of my own volition. And it had a bunch of legalese like, I here to acknowledge that I've Entered this relationship willfully, and I love him and he loves me. It's worth zippo, because all that employee has to say is, I signed that because I felt pressured.

Right.

So this idea of the love contract. And believe me, there were employers paying lots of money. We'll give you $10,000 to sign the love contract because you're having a relationship with an executive. Well, that's a gift because you got nothing in exchange. All the person has to say is, I felt pressured.

I was coerced. I felt pressured.

So this whole love contract, it's a piece of junk. It doesn't provide any sort of defense to. I know it sounds good. We all sort of have this idea of we wrote it down, so it must be true.

Right.

But, you know, I'm a lawyer. I don't read anything because my view is it's not negotiable. Right. You know, I buy a house, I want to make sure the price is right and maybe the interest rate, but otherwise, what am I going to read all the disclosures for? It's not like I can change them. So this whole idea of what's on a piece of paper, not that persuasive.

Okay, so there is no such thing as a love contract.

There are plenty of them out there that are worthless.

Consent. Consent. Consensual relationship agreements.

Yeah, we can call them whatever we want.

So, to your point, Jennifer, love is in the air 24 7, not just on a day or day after Valentine's Day. What are some key takeaways that we can provide to employers?

Okay, well, so first of all, realize that some people don't like Valentine's Day.

Yeah.

Some people consider it to be one of those, quote, Hallmark holidays, and they actually are kind of upset about it and they get grouchy about it. So we probably don't want to have the office Valentine's Day party. We don't want to have people. People giving out Valentine's. Believe me, I know that should have ended in third grade, but I have clients who have done that. Oh, let's celebrate Valentine's Day. Probably not the day you want to celebrate. Right? You don't know who's in the middle of a divorce, whose spouse is cheating on them, whatever. You don't even need to go there. Second thing we need to understand is we are limited in terms of what we can do. So what we do the rest of the year to encourage good behavior, appropriate treatment of our co workers, that all bleeds into Valentine's Day. We want it all to be exactly the same conduct. Now, is someone gonna get jealous? If the receptionist got delivered 12 dozen red roses, who wouldn't be in a little envious. I get it.

Right.

But the truth is that's nothing we can do anything about as the employer.

It's no different than an anniversary.

No other fault.

What about all the chocolates?

Well, the chocolates, of course, I would encourage those at all and to share them with everybody equally and to make sure that they're dark chocolate and they're chews and yummy. But here's the thing. If you're going to give a present, which some employers do, let's give everyone chocolate on Valentine's Day. That's great. That's nice. Do it for everyone. Understand that people may not want to eat it. Better approach is to just leave it alone. It really is a Hallmark holiday, this. There's really no reason for us to celebrate it. People get chocolate, great. We have a client who sends us chocolate on Valentine's Day because they don't want to give us gifts during the holidays. So we get a giant box of chocolate.

Sounds great.

It goes in the lunchroom and we all enjoy it. But there doesn't have to be a lot of discussion about it. We had one situation a couple of years ago where there was a young man who had a secret admirer. Well, he was the secret admirer of someone in his office and he was writing poetry and he was sending messages, email messages, and then she was circulating them across. What idiot is doing this? This is awful. The poor guy went out on a workers comp lease.

Oh, gee.

Which, as we all know, does not exist. But he had a workers comp claim and couldn't come to work. So this stuff explodes in ways that you can't even predict. So people are going to be who they are. But it's back to what we talked about a little while ago with anticipation. Right, Right. This idea of people thinking about, all right, what could go wrong in the work? Let me at least get some ideas.

Right. And I think kind of to that notion of anticipation, let's not have the game of Cupid in the workplace. Valentine hearts all over the place. Heart shaped cookies, brownie.

We don't need to celebrate.

We're not celebrating it. Well, on that note, thank you again for joining us.

Thank you, Erica. It's always my pleasure.

And thanks for listening to us on the workplace podcast. Please subscribe, share and comment about Cal Chamber's podcast by visiting calchamber.com SAM.