Showing posts with label employment law. Show all posts
Showing posts with label employment law. Show all posts

Tuesday, December 20, 2016

EMPLOYMENT LAW AND A NEW ADMINISTRATION

 

One of the biggest employment law developments of 2016 will carry over into 2017 and a new administration.  Employers nationwide spent much of the past year preparing for the December 1, 2016 implementation of the Department of Labor’s (“DOL”) Final Rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week).  However, just days before this key initiative of the Obama administration was to go into effect, a federal judge in Texas issued a nationwide preliminary injunction, finding the DOL had likely exceeded its authority under the FLSA. While breathing a sigh of relief, employers were left wondering what would happen next.
Current Labor Secretary Thomas Perez has since appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, seeking expedited review.  However, even under the expedited briefing schedule set by the Fifth Circuit, oral argument would not take place until at least February 2017, which would be after Donald Trump takes office.  This would allow the DOL, under Trump’s expected Labor Secretary Andy Puzder, to abandon the appeal.  Puzder, who is the current CEO of the parent company of Hardee’s and Carl’s Jr., has gone on record as to his strong opposition to the DOL’s overtime rule. 
My first prediction of 2017 is the Final Rule and its increased minimum salary requirement never goes into effect. Not surprisingly, Puzder also opposes efforts to increase the minimum hourly wage to $15, claiming such a significant increase would hasten the move to automation in the fast food industry and cost jobs.
In these waning days of 2016, the Equal Employment Opportunity Commission (“EEOC”) offered guidance to employers as to the rights of employees with mental illnesses under the Americans with Disabilities Act, and issued updated enforcement guidelines on national origin discrimination, including question and answer guidance and advice for small businesses.  Generally, national origin discrimination refers to: (a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity. 
President Trump also will be putting his stamp on the EEOC.  As previously reported,  over the last eight years, the EEOC has taken a very aggressive posture toward employers, including lawsuits against companies over criminal background checks and separation agreements.  The EEOC’s actions and litigation conduct earned it some harsh words and harsh rulings from a number of federal courts. 
President Trump will select a new EEOC Chairman and a new EEOC General Counsel in 2017, both of whom will set the tone and agenda of the agency going forward.  With the Trump administration’s focus on reducing regulations faced by businesses, one target could be recent major revisions to the Employer Information Report (EEO-1).  With a focus on equal pay issues, the new form will require employers to list employee pay and hours by categories of sex, race and ethnicity.  The regulations are slated to go into effect in March 2018, but under a new administration, could be revised or even abandoned.


Tuesday, March 31, 2015

Sun Worshipping Atheist Loses Religious Discrimination Suit



In religious discrimination cases under Title VII, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. The cases usually hinge on whether the employer reasonably accommodated the employee’s religious conflict with a workplace policy, or whether the requested accommodation imposed an undue hardship on the employer.  As noted in my original article “The Employee with the Dragon Tattoo”, even tattoos and piercings have been recognized as sincerely held religious practices.

However, the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” is not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours. [Marshel Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.)]

When hired at the prison, Marshel Copple was told there was mandatory overtime. However, shortly after being hired, he requested to work only 8 hour shifts based on Sun Worshiping Atheism’s religious tenets of praying in the sun, exercising, socializing, getting fresh air, sleeping well and being skeptical in all things.  When the prison declined to accommodate his request, he refused to work three overtime shifts and subsequently resigned, claiming constructive discharge. He filed an EEOC Charge, which was dismissed and and subsequently brought suit under California’s Fair Employment and Housing Act.  Following a summary judgment ruling against him in a lower court, he appealed the adverse ruling.

In affirming the dismissal of the lawsuit, the California appellate court held that religions address “fundamental and ultimate questions having to do with deep and imponderable matters”, and that Sun Worshiping Atheism was simply a practice of living a healthy lifestyle, with none of the trappings of a religion.

In my post “Sign of the Beast Hand Scanning Case Provides Valuable Lesson to Employers", I discussed how an employer’s failure to accommodate an employee’s religious beliefs resulted in a high dollar jury verdict for the employee.  In that case, the employee was denied a reasonable accommodation to his religious belief that the technology behind the employer’s hand scanning time clock system had a connection to the “mark of the beast”  as alluded to in the Book of Revelation in the New Testament of the Bible. 



However in a recent similar case, the United States Court of Appeals for the Sixth Circuit found in favor of the employer, where the employee refused to provide a Social Security number because he considered it the “mark of the beast.”  In Yeager v. FirstEnergy Generation Corp. (6th Cir.), the Sixth Circuit held an employer has no duty to accommodate a religious belief where such an accommodation would violate a federal statute, which in this case, required the employer to collect and report the Social Security numbers of their employees.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Wednesday, March 18, 2015

Settlement in HIV Termination Lawsuit Highlights Continuing Employer Confusion over ADA



A nationwide manufacturer and distributor of fruit juice will pay $125,000 to settle a lawsuit brought by the EEOC on behalf of an employee who was terminated after the company learned he was HIV-positive. [EEOC v. Gregory Packaging, Inc. (N.D. Ga.]  The fact that the employer specifically told the man he was being terminated because of his HIV status highlights continuing employer confusion over the Americans with Disabilities Act (“ADA”), even twenty-five years after its passage, and especially as it relates to employees with HIV/AIDS.

The plaintiff in the case was employed as a machine operator at the Newnan, Georgia facility of Gregory Packaging, Inc., a company that sells juice products to school districts and medical institutions. When the employee developed a skin rash unrelated to his HIV, rumors began to circulate among other employees that the employee’s rash was the result of AIDS.  In an effort to quash the rumors, the employee informed his supervisor that while he did have HIV, the skin condition was unrelated, and there was no danger of him transmitting HIV to food products or co-workers.  Despite his good job performance, and no evidence of a health risk, the employee was terminated approximately a month later.  He was informed the reason he was being fired was because he had HIV.

The employee declined a separation agreement offered by the company, which included a release of claims. The Equal Employment Opportunity Commission (“EEOC”) subsequently brought a lawsuit on the employee’s behalf, alleging violations of the ADA and similar claims brought under Georgia state law.  Despite the company’s early efforts to fight the lawsuit, the case was settled pursuant to a court-approved consent order, which provided for the $125,000 payment by the New Jersey based company, and required equal employment opportunity training and reporting to the EEOC.

What is most surprising about this case, is that even before the ADA’s expansion under the Americans with Disabilities Amendment Act (“ADAAA”), it was generally established that a person with HIV/AIDS met the Act’s definition of an individual with a disability.  Furthermore, as noted in EEOC guidelines, even those who are regarded as having HIV/AIDS are protected under the Act, even if they do not have the disease.  The example given by the EEOC is a person being fired on the basis of a rumor that he had AIDS, even though he was not infected.

Employers involved in the food and restaurant industry are often at the focus of these types of lawsuits. As was the case at Gregory’s Georgia facility, the situation is often fueled and exacerbated  by rumors spread by co-workers or customers, and fears of HIV/AIDS being transmitted through an employee’s contact with food products.   

According to the Department of Health and Human Services, HIV/AIDS is not a disease that can be transmitted through food handling. Diseases that can be transmitted by an infected person handling food include (1) noroviruses, (2) the Hepatitis A virus, (3) Salmonella, (4) Shigella, (5) Staphylococcus, and Streptococcus.  For more detailed information, employers in the food service/restaurant industry can find guidance through the EEOC publication “How to Comply with the Americans withDisabilities Act: A Guide for Restaurants and Other Food Service Employers.”

Employer’s also need to be aware that in the context of HIV/AIDS, the ADA also protects employees who do not have the disease, but have an association or relationship with someone who does.  In the EEOC guidelines, examples of employment discrimination against persons with HIV or AIDS include:

         An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.

         An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.

         A restaurant that fired a waitress after learning that the waitress had HIV.

         A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.

         A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.

         A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.

         A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.

         A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.

While the ADA does include a “direct threat” defense in regard to employees who pose a significant risk of substantial harm to the health and safety of the employee or others, the defense  requires medical or other objective evidence, as opposed to subjective beliefs or assumptions based on stereotypes.  However, the take-away from this case is that proper training of supervisors in addressing ADA issues is a much better and less expensive option than having to establish defenses after a suit has been filed.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com




Sunday, September 21, 2014

EEOC Experiences “Separation Anxiety” in Lawsuit Against CVS



          The details are still yet to be known, but word out of Chicago is that the EEOC has suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements.  Employers commonly use separation or severance agreements when the employment relationship ends. In exchange for some type of payment, the employee agrees to a general release of any potential claims he or she might have against the employer, and possibly other provisions, such as confidentiality and non-disparagement clauses.
As reported in my August 8, 2014 post “Mad Men: The EEOC Advertises its Aggressive Agenda”, earlier this year, the EEOC filed a lawsuit against CVS, claiming the drug store chain’s use of its standard separation agreement demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 
The EEOC’s lawsuit was troubling for many in the business community, because employers nationwide commonly use the language being attacked in the CVS agreements. In the event the EEOC were to prevail, it could have result in chaos for many businesses, casting into doubt the validity of such standard severance agreements, and potentially allowing former employees to revive previously barred claims.  
On September 18, 2014, U.S. District Court Judge John Darrah verbally granted CVS’s motion to dismiss based on the EEOC’s failure to state a claim, and an opinion is expected shortly that will give the Court’s basis for dismissing the EEOC’s lawsuit.  CVS has announced it is pleased with the decision and the EEOC is withholding comment until it sees the Judge’s written opinion.
It is not surprising that the EEOC filed the lawsuit.  In its Strategic Enforcement Plan for 2013-2016, the EEOC had announced its intent to target employer policies it claimed discouraged or prohibited individuals from exercising their legal rights, including overly broad waivers or settlement provisions that prohibited filing EEOC charges or providing information in EEOC or other legal proceedings.
In its rush to file a “test” case, the EEOC might have made the error of simply picking the wrong defendant to go after, or not bothering to actually read the agreements in question.  When it filed its motion to dismiss, CVS noted that its separation agreements expressly allowed for employees to participate with and cooperate in any investigation by a government agency, including the EEOC. Specifically, CVS’s agreements expressly note that none of the provisions are:
“[I]ntended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit employee from cooperating with any such agency in its investigation,” provided of course that the employee waives her entitlement to monetary and other relief.

       The decision in the CVS case may not bode well for a similar lawsuit filed by the EEOC in the United States District Court of Colorado.  Some legal commentators have suggested that the EEOC may be trying to use this type litigation to impose new guidelines for such agreements, or perhaps as a prelude to more formalized regulation

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Friday, March 28, 2014

NLRB Says “No Workplace Secrets Allowed!”



The National Labor Relations Board (“NLRB”) has held that an employer’s enforcement of a commonly used workplace policy could expose the employer to liability under the National Labor Relations Act (“NLRA” or “the Act”).
This particular matter involved the technology company MCPc, which had a confidentially provision in its employee handbook which read. In part, as follows:

[D]issemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination . . . .


This type of policy, in one form or another, is commonly utilized by many employers.  In the case of MCPc, the company fired an employer after he announced at a meeting that the salary paid to a particular executive, stating the specific amount of the executive’s compensation, would have been used to hire additional engineers.  In terminating the employee for his statements, MCPc also based the decision on the employee improperly accessing computer files to discover the executive’s salary.
Last month, the NLRB upheld an administrative law judge’s decision, finding that MCPc’s internal confidentiality policy was overbroad and violated The NLRB held that this language violated Section 8(a)(1) of the NLRA because employees would reasonably construe the overbroad rule to prohibit discussion of wages or other terms and conditions of employment with their coworkers.  In upholding the ruling against MCPc for the termination of the employee, the NLRB agreed that the employee’s discussion was protected discussion because it involved the terms and conditions of his employment, i.e. staffing shortages.

In recent years, the NLRB has used the same rationale to find many employers’ social media policies to be in violation of the Act.  Another lesson to remember from the NLRB’s assault on workplace social media policies is that an employer can be found in violation on the basis of an overbroad policy alone, even if there is no action taken against an employee for violation of the policy.  As many employers also learned from the NLRB’s social media focus, even non-union employers can be found in violation of the NLRA.

Where does this leave employers?  As mentioned above, many employers have similar policies in their employee handbooks.  This is often for the purpose of avoiding the inevitable bickering and complaints that arise when employees start comparing their respective salaries, and are aggrieved over their perception of being underpaid, or another employee being overpaid.  Unfortunately, that goal is exactly what the NLRB views as a violation.
From the perspective of the NLRB’s “bigfoot” approach in the area of social media policies, I think employers are ultimately going to have to scrap the broadly worded confidentiality policies, and opt instead for narrowly tailored policies that protect against the disclosure of trade secrets and other confidential or proprietary information.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Tuesday, November 26, 2013

THE LEGAL PITFALLS OF WORKPLACE ROMANCE


 


Birds do it, bees do it,

Even educated fleas do it,

Let’s do it, let’s fall in love

                        Let’s Do It (Cole Porter 1928)

I.  Introduction

History is full of great romances.  Romeo and Juliet, who defied their families for true love.   Rhett and Scarlett’s tumultuous love was set against the backdrop of the Civil War.  And of course, the classic workplace romance at the Daily Planet between Clark Kent/ Superman and Lois Lane.

But for Larry, GeneriCorp’s Human Resources Director, the great romance he’s concerned about is between Shipping Department Manager Ken Worth and Shipping Clerk Lola Rider.  Ken is Lola’s direct supervisor.  Larry learned about the couple’s sexual relationship after other female clerks in the Shipping Department angrily complained about Ken’s plans to promote Lola to the newly created and higher paying position of Assistant Shipping Manager. 

All indications at this point are that the relationship is consensual.  Morale is suffering in the Shipping Department amid complaints of favoritism and Larry is concerned about whether the company may have more serious potential legal problems.

II.  The Workplace as a “Dating Pool” 

Workplace romances are nothing new and if anything, have become more common. With the amount of time people spend working and the increased percentage of women in the workplace, it’s no surprise that the workplace is fertile ground for couples to meet. People who work together also usually live within a reasonable dating distance, and because they share a workplace, they see each other on a daily basis.  Coworkers in similar jobs may also be approximately the same age, and share similar interests both inside and outside of work.  As such, the workplace creates an inadvertent dating pool. 

In a survey of U.S. workers by the staffing and recruiting business Spherion Corporation, 39% of workers said they have already had a workplace romance and the same percentage would consider it.  Looking at the workplace relationships, the survey found 27% involved couples dating for just a few weeks or less, 30% dating for several months, 15% dating several years and 25% resulting in marriage of coworkers.  As the survey indicates, the majority of these relationships are short term and when the romance sours or goes bad, it can be really bad and cause serious problems for employers.  The Spherion Corporation survey noted that nearly half of all employees surveyed (46%) said they felt that dating a coworker would jeopardize their job security or career advancement opportunities.

III.  Non-Fraternization Policies

In this case, GeneriCorp does not have a non-fraternization policy, which would otherwise address Ken and Lola’s workplace romance.  In this regard, GeneriCorp is not unique. A recent survey by the Society for Human Resource Management  showed that 72 % of the employers who responded said they did not have a written non-fraternization policy, 14 % said they had a non-written policy that was understood within their workplace, and only 13 % indicated they had a formal written policy.  However, even when there is a policy, many employers adopt an enforcement attitude of benign neglect. 

This is not surprising.  It’s an awkward subject for some employers and Human Resource professionals, who do not relish the role of being the “Romance Police.” Many would rather not get involved in employees’ personal lives unless it is causing problems in the workplace.  However, such policies are important so employers can clearly communicate to employees what is and is not appropriate in the workplace and to protect themselves from legal liability and disruption of the work environment.

What are some of the specific reasons for adopting such a policy?  It addresses and hopefully prevents problems arising from:

·         Favoritism/perceptions of favoritism (and the ensuing rumor mill)

·         Disruption of the workplace (including extramarital affairs)

·         Conflicts of interest

·         Confidentiality (nondisclosure agreements, trade secrets, salary information, etc.)

·         Hostile Work Environment

·         Sexual Harassment (including repeated unsolicited requests for dates)

The purpose of this article is primarily to address the issues that arise from consensual workplace romances, and it is not intended to address the broader area of sexual harassment.  However, as noted above, the problem with certain office romances, especially between supervisors and subordinates, is that they may not be consensual, and in fact may be coerced.  Contrary to the traditional Title VII scenario in such cases, in recent years there has been an increase in the number of EEOC charges filed by male employees, complaining of sexual harassment from female supervisors.  Any such  issues should be addressed fully by the sexual harassment policy employers should already have in place. A non-fraternization policy should be utilized in conjunction with the sexual harassment policy.

A.        Supervisor and Subordinate Relationships

In the case of the romance between GeneriCorp Shipping Manager Ken Worth and Shipping Clerk Lola Rider, what are the legal issues?  Assuming that it is a voluntary consensual relationship, there would not appear to be any liability for GeneriCorp under Title VII for sexual harassment and/or sexual discrimination. 

  However, what about the claims of favoritism from the other female clerks in the Shipping Department, who are upset that Lola is getting a promotion from her boss and new boyfriend?  Do these other employees have a Title VII claim against GeneriCorp for favoritism shown to a co-worker who is sexually involved with a supervisor?

According to the EEOC, the answer, in regard to “insolated instances” of sexual favoritism, is “no.”  The EEOC Policy Guidance on Employer Liability under Title VII was adopted January 12, 1990, and was updated in June 1999.  It provides that:

Not all types of sexual favoritism violate Title VII.  It is the Commissioners position that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.  An isolated instance of favoritism toward a “paramour” (or a spouse or friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.  A female [plaintiff] who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.[1]

In essence, the EEOC is saying that while other employees in the workplace, both men or women, may feel the situation is unethical or unfair, it is not sexual discrimination because both groups are disadvantaged for reasons other than their gender.  However, the EEOC Policy Guidance also notes that:


Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.  This can form the basis of an implicit “quid pro quo” harassment claim for female employees, as well as a hostile work environment claim for both women and men who find this offensive.
 

The EEOC authority has been cited favorably by federal courts within the Fifth Circuit (which encompasses Louisiana, Mississippi and Texas) in dismissing such claims of sexual favoritism.  The Fifth Circuit itself has also held that an employee does not have a cause of action for retaliation for reporting a supervisor’s sexual relationship with a subordinate coworker.[2]

However, there is some indication that courts may be taking a more nuanced view on sexual favoritism based on consensual relationships. The key phrase in the EEOC Policy Guidance is that “Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.” 

In a recent case by the California Supreme Court, it was held that widespread and overt sexual favoritism resulting from consensual relations could create a cause of action for sexual harassment and hostile work environment.  This ruling may reflect a trend in how courts view such cases.
 In Miller v. Department of Correction, 36 Cal. 4th  446 (Cal. 2005), two former female employees at a California prison claimed that the warden gave unwarranted favorable treatment to numerous female employees with whom he was having sexual affairs, and they claimed it amounted to sexual harassment and discrimination.  The case was dismissed at the trial stage but the California Supreme Court reinstated the lawsuit.  While it was a state court claim, the California Supreme Court relied on the federal EEOC Policy Guidance.  In finding for the Plaintiffs, the Court held:

[A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed as “sexual playthings” or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management. (emphasis added).

It is not uncommon that once a consensual relationship ends, the subordinate employee will subsequently claim they were coerced by the supervisor and will file a Title VII lawsuit.    Aside from any potential legal liability, the issue of a supervisor sexually involved with a subordinate can result in acrimony and disruption in the workplace if the relationship ends badly.  Even assuming the relationship continues happily, the impact in the workplace can be disgruntled coworkers, poor morale and a never-ending distraction from the real work of your business.
An employer’s non-fraternization policy should strictly prohibit romantic relationships between supervisors and subordinate employees or any employee who falls under that supervisor’s chain of supervision.  Companies that are large enough sometimes have policies that allow the supervised employee to transfer, if possible, to a different department, where they would not be supervised by their love interest.  However, this potentially opens the door to claims of employees being treated differently on the basis of their gender.  A zero tolerance policy best protects the employer.

While this type of policy may seem harsh and draconian, it is important to remember that the purpose of your business is not to be a dating service or a singles bar.  You did not create the situation, the two employees who started the relationship created the problem.  Having been involuntarily placed in the position of having to deal with it, this is the best option to avoid possible legal liability and problems in the workplace.  In the instance of a violation of the policy, the following procedure can be followed:

(1)   Call them in and talk to them separately;

(2)   Tell them that you have reason to believe that they are involved in a sexual relationship with the other employee;

(3)   Make them aware that the company has serious concerns because a relationship between a supervisor and a subordinate employee leaves the company open to claims of sexual harassment, hostile work environment, retaliation or favoritism;

(4)   Inform both employees that it put the company in position where it has to do something to avoid legal liability and/or disruption to the workplace, and the situation  cannot continue;

(5)   Tell both of them they have until noon the next day or some other deadline to decide between themselves which of them is going to voluntarily decide to resign, and if they can’t, both of them will be terminated.  This avoids later claims of sex discrimination, because the employer’s decision is not based on gender and in the event they cannot decide, both genders are treated equally.  Some employers may elect to terminate one of the employees based on their respective employment history, position and seniority.  However, this opens the door to claims that employees of different genders were treated differently.
Some employers adopt non-fraternization policies that discourage but do not strictly forbid relationships between supervisors and employees who do not fall under their chain command.  Such policies require that the relationship must be disclosed by the supervisor to his or her manager or the next person up the supervisory chain.  The higher supervisory official then must assess the situation and make a recommendation to resolve any actual or potential conflict created by the relationship.  However, such policies may not address all of the potential problems. Likewise it results in  company managers using company time to “assess” romantic relationships.

 B.        Coworker Relationships
Fresh on the heels of addressing the Ken and Lola romance in the Shipping Department, Larry the Human Resources Manager is faced with another office love affair.  This time it’s over in the Data Processing Department.  Larry learns that Data Entry Clerks Ivy Pod and  Pete Dief have been dating quietly for six months, and generally few people at GeneriCorp know they are an item.  Neither Ivy nor Pete have any supervisory authority over each other.

It’s estimated that 80% of office romances involve similarly situated co-workers. Romantic relationships between co-workers with no supervisory authority over the other still present many of the same potential problems for the employer.  While there is less potential for sexual coercion than in a supervisor - subordinate situation, there is still plenty of opportunity for disruption of the workplace during the relationship, and even more so after an unhappy breakup.
Adopting the same zero tolerance policy as to co-worker romances is an option.  However, Human Resource professionals report such policies are harder to enforce in a co-worker scenario. Employees resent the intrusion into what they perceive as their private lives and they are more likely to keep the workplace relationships underground, putting more effort into “beating the system” as opposed to complying with a no-dating policy.

Taking into account the realities of the workplace and the reluctance to be the “Romance Police”, some employers have adopted policies that allow co-workers to date but require both individuals to enter into written agreements: (1) voluntarily disclosing their relationship, (2) acknowledging their understanding of the company’s sexual harassment and discrimination policy, and (3) acknowledging that if the relationship causes disturbance in the workplace, they may be subject to discipline, up to and including termination.  Such an agreement also requires either party to promptly report to management anything relating to the relationship or a broken-off relationship that might serve as the basis of a harassment complaint. 
Such an agreement is a way for employers to preemptively avoid problems with office romances.  If you need such a policy drafted for your business or a non-fraternization policy, please feel free to contact me and we can discuss what type of policy or agreement would work best for your workplace.

                        IV.  Tips for Dealing with Workplace Romances  
Office romances are often the focus of intense gossip, so Human Resources professionals and supervisors need to know to keep their ears open for news about job or career damaging behavior resulting from such relationships.  Supervisors need to know the appropriate disciplinary measures to take if a romance derails and the resultant employee behavior disrupts the workplace.

Employees need to be made aware that the company will not tolerate sexual liaisons or sexual behavior at work and any such relationships need to be kept entirely separate from the work environment. The company’s sexual harassment and non-fraternization policy needs to be posted and all employees should be trained as to the company’s policy.  If romance becomes sexual harassment, supervisors, working in concert with Human Resources, needs to know what to do to take immediate action.

V.  Conclusion
Paraphrasing the old song at the start of this paper, if birds and bees and educated fleas fall in love, the odds are employees at your company are doing the same.  Having the appropriate policies and training in place can help prevent legal woes  as well as workplace headaches and heartaches

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com


[1] See EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism No. 915.048
 
[2]       See Ellert v. Univ. of Texas, 52 F.3d 543 (5th Cir. 1995) (“Even if [Plaintiff’s] knowledge of the affair was the true animus behind the discharge decision, it was a motivation that did not rely upon her gender and, as such, it was not within the ambit of Title VII’s protections.”).