Workplace dating policies gain urgency in remote era

The basics:

• Survey shows 52% workers have experienced workplace romance
• Remote work, virtual platforms changing how office relationships form
• NJ employment attorney Mark Kluger advises clear harassment policies, ‘love contracts’ to reduce legal risk
• Training, stronger HR enforcement are key to preventing hostile work environment claims

February isn’t just about flowers, chocolate and romantic gestures for Valentine’s Day.

It can also be a time for companies to review whether their rules around employee relationships are clear, current and protective. Or, whether it’s time to put a formal workplace dating policy in place.

As hybrid and remote work are increasingly blurring the line between professional and personal life, well-defined policies regarding office dating are becoming less of a nice-to-have and more of a basic risk management tool.

Though slightly more than half of U.S companies have something on the books addressing employee relationships, that leaves a sizeable share who lack rules or rely on informal practices. And few companies require employees to disclose an office romance.

A Society for Human Resource Management survey of about 1,000 U.S.-based employees and 2,280 HR professionals found that 33% of organizations have a clear, structured policy that allows office dating but sets clear boundaries and expectations to maintain professionalism. Another 33% of companies have a flexible stance that calls for handling situations on a case-by-case basis. And 22% of businesses have a hands-off approach with no proactive stance on workplace romance and only address issues if they occur.

Additionally, 7% said their company’s approach is “still being developed” and not yet well-defined or communicated. Meanwhile, 5% said their company leaders discouraged dating among colleagues or prohibited it altogether, SHRM said.

The HR trade association noted its survey also revealed that 52% of workers have either been in or are currently involved in a workplace romance.

What’s at stake?

While many relationships have little impact on work and some even lead to long-term commitments or marriage, they also carry real risks, such as productivity losses, favoritism claims, legal exposure, power imbalances and messy breakups that damage morale. Because of the potential to strain team dynamics and create tensions within the workplace, organizations are increasingly being urged to develop ways to navigate these situations effectively.

While approaches can vary to fit each organization’s culture, clear, well-communicated policies and training are key to reducing risks, safeguarding employees and building trust, SHRM said. Those rules should also consider that workplace romance has taken on a new dimension in the era of remote work.

Online career platform Zety’s latest modern workplace romance report addresses how technology is reshaping the way in which workplace relationships begin and thrive. The survey included replies from more than 1,000 workers across the country.

Key findings include:

• 86% say remote work has made it easier to form romantic connections with coworkers
• 94% think emojis and GIFs can help facilitate office flirting
• 51% “frequently notice romantic tension or flirtatious behavior between colleagues during virtual meetings”
• 62% have initiated a romantic or flirtatious message to a colleague via a remote work platform, like Slack or Teams
• 27% have received this type of message and 6% have experienced both

‘A different vibe’

New Jersey-based employment law attorney Mark Kluger said, “It took a little while to sort of understand how the dynamic of workplace sexual harassment and romance has changed from the pandemic forward.”

Kluger is co-founding partner of Kluger Healey LLC, a firm that advises and represents employers and businesses on a wide range of workplace and commercial legal issues, including human resources counseling, labor and employment law litigation, workplace investigations, policy development and employment law training.

The team of seven attorneys across Lincroft and Montclair also help companies address matters such as discrimination and harassment defense, wage-and-hour compliance, labor relations, commercial disputes and other employment-related risks.

Kluger said, “The virtual world that we have meetings in today can create its own form of intimacy that you wouldn’t find in the office. So, for example, when you’re on a Zoom call with coworkers – especially when they’re home – people are in sort of a different feeling than sitting around a board room or a meeting room. So, there’s a more relaxed environment which can create a different culture, a different vibe and can lead to more flirting or more personal contact, especially when people don’t blur the background and you see the dog, you see the kids, you see the cat or whatever it is.”

Blurred lines

“And then the lines between personal life and professional life become blurred, and that’s created this different dynamic that can lead to more familiarity and potentially more line crossing,” Kluger said.

“There is a level of intimacy that doesn’t exist when you’re in an office, even in an office with the door closed because there’s people walking by and there’s other people around. But when you’re one-on-one and you know how close those cameras make your face, you’re literally in each other’s faces,” he explained. “And that is potentially dangerous for somebody who wants to be a little too familiar, because you’re literally alone with a person in a way that you wouldn’t be in an office.”

Kluger went on to say, “And also, the potential for recording the dialogue exists, which frankly, it exists in the office too, because I’m not talking about necessarily recording the Zoom call through Zoom or the Teams apps, but just with your phone … so I always caution employees and managers today to just assume you’re always being recorded.”

The #MeToo effect

The shift to virtual isn’t the only reason why employers are upping their game when it comes to handling office romances, according to Kluger.

The #MeToo movement is a big factor, too, he said. After the grassroots effort gained global attention in 2017, survivors of sexual harassment and assault felt empowered to speak out and highlight the prevalence of misconduct in workplaces and beyond.

“Policies have become far more sophisticated in terms of how they explain the legal definition of workplace sexual harassment and who to complain to,” said Kluger, adding, “ … We learned a lot from other employers getting sued and having published opinions where courts laid out for us lawyers what they believe are effective sexual harassment policies.”

Policies have become far more sophisticated in terms of how they explain the legal definition of workplace sexual harassment and who to complain to.
– Mark Kluger, employment law attorney

“Certainly 10, 20 years ago, large companies had policies. They were less fleshed out than they are today and were less clear in terms of what the mandates were. But I would say definitely in the last 10 to 20 years, that trend of having workplace harassment policies has trickled down much further into just about any size company, particularly if they’re getting any kind of legal advice,” Kluger said.

“Insurance carriers are asking that question, ‘Do you have policies against workplace harassment?’ And they don’t want to write insurance policies, employment practice or liability insurance policies, for even a five-employee company if they don’t have a policy in place. So, that has sort of also urged smaller companies to implement policies,” Kluger said.

Feeling powerless

He went on to say employers of all sizes should have policies to help protect against claims, but notes that enforcing them can be much harder in small companies. With limited leadership and closer, family-style dynamics, employees may have fewer options to report issues – especially if the harasser is one of the people in charge – compared with larger organizations that offer multiple layers of management and oversight.

“We learned about this really in the #MeToo movement, where we saw so much of the pushback from employees was about the fact that the policies were ineffectual when the CEOs, the CFOs and the C-suite people were doing the harassment and HR was powerless to do anything about it,” he said.

“You’d have a policy that said, ‘If you get sexually harassed, report it to HR.’ Well, on the org chart, HR is a million miles below the people who are doing the harassment. So, what are they going to do? Are they going to be in the face of the chief operating officer saying, ‘You’re harassing this person, your job’s on the line’? They weren’t doing that,” Kluger said.

“That has changed a lot as a result of the #MeToo movement and HR has been given much more power and a seat at the table, as they say. But in a smaller company, that dynamic of who’s going to really corral the harasser becomes more difficult,” he said.

Why companies need policies

During the earlier part of his 38-year career practicing law, Kluger said he dealt with a few instances in which companies “didn’t have policies and didn’t think they needed policies.”

“And what has happened in those situations where there was a lawsuit was the liability is just that much greater because the employer didn’t even bother to make a statement in their policies or in their employee handbook indicating that it wouldn’t tolerate sexual harassment,” he said. “So, the plaintiff in those lawsuits had a much stronger case because they didn’t even have a policy statement … and that just amplified the potential damages.”

“Employers are responsible for ensuring that the workplace is free from hostile work environment. And by hostile work environment, it means discrimination … so, that can be created by sexual behavior in the workplace,” he explained.

Employers are responsible for ensuring that the workplace is free from hostile work environment.

“Employers are responsible for ensuring that their workplace is free from that kind of discomfort, sexual harassment, or, in the case of romance, people who are making their coworkers uncomfortable,” Kluger said.

Equally important is enforcing those policies, he said.

“Employers can have policies, but if they don’t enforce them, they’re not worth much. What’s equally important to having a policy and guidelines is for the human resources professionals or the managers to be familiar with those policies and know how to enforce them,” he said.

A knowing trend

Besides being a frequent speaker and writer on sexual harassment and discrimination avoidance, workplace diversity, performance management, union avoidance and other employment-related subjects, Kluger regularly conducts training sessions for employers on these topics.

In recent years, Kluger has noticed a trend of companies being “way more self-conscious about educating every level of management and non-management in what the policies mean.”

“There’s much more frequent training and that is partly due to these issues but also the virtual world,” he said. “I’ve got clients who maybe every couple of years I would be doing sexual harassment training for, but now because they can just put me on the screen and I don’t have to drive to their location, they’ll ask me to do an hour refresher on sexual harassment. Sometimes multiple times a year, depending on the size of the employer.”

Well-behaved cheer

A senior director at Kessler PR Group shares holiday party tips to help your company avoid an HR – or PR – crisis. Find out here.

“So, definitely much more training than ever. And I’ve done sexual harassment training since the mid-’90s. But post-#MeToo and definitely post-COVID, there’s much more frequent training, much more drilling down with management about what the policies mean and how to implement them,” he said.

Before that, Kluger said his “busy season” used to be around the time of the annual company holiday party.

“That’s because those claims started rolling in around January or February, because that’s when people have sort of settled down, figured it out and gone to a lawyer because a drunk boss at a holiday party was inappropriate,” he said.

‘Love contracts’

Because of real – and perceived – favoritism and workplace imbalance, Kluger discourages romantic relationships between a supervisor and someone who reports directly to them.

“If they are [dating], they’ve got to be moved because if somebody is in a relationship and they’re responsible for evaluation of that employee or giving out good assignments, or even just in meetings praising people’s work, the sexual favoritism that can be either real or perceived by coworkers can really destroy the morale of a work environment and frankly create legal claims,” he said.

At the same time, Kluger doesn’t advocate for a blanket ban on all office romances. Instead, he recommends consensual relationship contracts. As part of the written agreement, employees in a consensual workplace relationship acknowledge company policies and agree to let HR know if any circumstances change.

“Or, as I like to call, them, ‘love contracts.’ By having them, you’re essentially telling employees … that it’s OK to be in a romance with your coworkers, but that you have to have an understanding of the implications of that in the workplace.”

“What I say is to HR professionals is if you encourage employees to be open about their relationship, it will save them and their coworkers a lot of angst and problems later,” Kluger said.

By having [‘love contracts’], you’re essentially telling employees … that it’s OK to be in a romance with your coworkers, but that you have to have an understanding of the implications of that in the workplace.

Breaking up is hard to do

“The real crux … is not so much what goes on during the course of the relationship, like PDAs and being conscious of the feelings of others around you, but it’s really more if things don’t go well and because of the potential discomfort among coworkers that may happen after they break up.”

“So if, for example, an employee ends a relationship, but their offices are near each other and it’s a bad breakup and one of them is going to be really upset having to see the other every day, that’s something that if they notify HR that the relationship is over, they can do something about that, like changing office locations for one of them so that they don’t have to collide in the hallway and be more upset. Or if one is unhappy that the relationship ended and is accepting the fact that it’s over and they’re making the one who ended the relationship feel uncomfortable because they’re being persistent, that is potentially a form of sexual harassment that we can avoid if HR is aware of the fact that the relationship has ended and one person really isn’t accepting the outcome,” Kluger said.

“And, so we can immediately engage in counseling with the person who is being persistent to avoid creating a hostile work environment for the other employee. And that’s the fundamental crux of the policy is to avoid the aftermath effects and the potential for sexual harassment that may come from that,” he explained.

Surprise outcomes

As for employers who feel it could be an overreach, Kluger said, “I would tell them that they’re playing with fire and that they’re forcing employees into the closet over things that can later blow up and become a liability.”

“And I was a skeptic, frankly, about the love contract concept when I first learned about it. First of all, I just didn’t think that people would volunteer to do it. And secondly, I was also a little concerned about the overreach,” he said.

After reluctantly agreeing to an HR department’s request to draft one for their 300-person company, Kluger was surprised to see how effective it could be.

“Almost right away, a couple came forward and we implemented it. And maybe six months later, that couple broke up and the woman in the relationship came to HR and said that the relationship had ended and that the guy wasn’t too happy about it,” he said. “And HR was able to intervene right away, talk to him and say, ‘Look, she’s not comfortable. We’re going to move your office and back off.’ And it worked. It really worked. And so, I became a true believer.”

“You can avoid a lot of problems, particularly with the aftermath, but even during the course of a healthy good relationship, with that kind of transparency,” Kluger said.