Love Contracts: What Restaurant Owners Should Know About Consensual Relationships Between Employees

by Molly R. Gwin3 Min Read

The line between work-life and home-life is increasingly blurring as people spend more time at work or connected to work. With technology that enables ongoing and continuous access to the work environment and the rising expectation that employees be available 24/7, the smart employer needs to revisit their workplace romance policy and personnel manual to make sure it recognizes the new realities of dating.

Particularly in the restaurant industry, employees often work long and late hours together and socialize outside of the workplace. This can encourage both platonic friendships and romantic relationships. While these relationships can result in a culture of camaraderie, thereby increasing productivity and decreasing turnover, it can also result in the development of consensual romantic relationships. With these relationships comes the potential for legal claims of sexual harassment, gender discrimination and favoritism between different employees. Workplace romance policies – of which consensual relationship agreements are just a part – are important in creating a culture of openness and honesty as well as an essential part of protecting against legal claims.

Historically, most workplace romance policies banned relationships between supervisory and management level employees and subordinates, even going so far as to terminate employees over engaging in such behavior. Many workplaces now recognize that these relationships can be inevitable, and that a “zero tolerance” policy only creates the potential for deception, leading to a lack of ability to determine when a relationship goes from consensual to non-consensual. Recognizing that these relationships may be inevitable, while still striving to protect employees from unwelcome advances or claims of unwelcome advances, has resulted in the creation of consensual relationship agreements.

In the event a consensual relationship arises between supervisory and subordinate employees, HR policy should require the relationship be reported to a designated HR professional. The parties must then sign an agreement acknowledging that the relationship is consensual and agreeing to notify HR in the event of a change. While admittedly much of this rests on the employees being forthcoming, being able to point to a policy that requires reporting of such relationships and non-compliance by the employee in the event the relationship is not reported is a good and necessary first step to protecting employers from related legal claims.

A consensual relationship agreement is particularly important for a relationship between a supervisor and subordinate where the potential for coercion and favoritism is greatest. The legal standard for sexual harassment requires employers to take “prompt remedial action” upon becoming aware of a sexual harassment allegation. With a consensual relationship agreement in place, it provides an additional level of protection to ensure the subordinate employee cannot later claim the relationship was non-consensual, thereby exposing the employer to liability. While difficulties can arise when a relationship transitions from one of a consensual nature to that of a non-consensual nature, the presence of these agreements allows an employer to say that they have established a “clear line rule” for reporting and that they are attempting to protect employees. Finally, these agreements support a more open and progressive culture where employees are encouraged to speak to a designated HR professional.

The first step to any successful workplace romance policy is to have a personnel manual with a consensual workplace romance policy, designating a point of contact for reporting workplace romances and identifying the workplace romances that are required to be reported. Employers should also take care to designate an alternative person in the event the person who is designated is the party who is in the relationship. Additionally, employers should also work with legal counsel to make sure that existing employee manuals comply with applicable local, state and federal requirements.

Much of the efficacy of consensual relationship agreements relies on how open and honest the employees are with management and supervisors. Having appropriate personnel handbooks with clear guidelines and identifying whom to speak with regarding issues is important to ensure that employees feel safe and comfortable reporting perceived harassment as well as consensual relationships.

Molly R. Gwin

@IsaacWilesLaw | LinkedIn | Website | Email

Molly R. Gwin is an attorney at Isaac Wiles in Columbus, Ohio where her practice focuses on defending employers from Title VII, ADA, ADEA and other labor & employment litigation issues.

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