2013 Cal-Peculiarities

It’s here!  On April 30, we released the 2013 edition of Cal-Peculiarities: How California Employment Law is Different, the industry’s only annual guide that focuses exclusively on the most vexing aspects of employment law in the country’s most populous state.   Authored by Seyfarth’s California Workplace Solutions group, this 262-page guide captures the latest legislative,

Oh, L’Amour.  As Valentine’s Day approaches and the flowers and cookie bouquet deliveries start roaming the hallways, it is time for us to turn our sights on one of the most innocent-seeming, yet problematic, aspects of employment law:  the workplace romance. 

Despite the fact that quid pro quo harassment claims continue to decline in favor of the much more popular hostile work environment claim, we must recognize that some entirely consensual workplace relationships go bad.  And the result is a claim that “I only did that because I didn’t feel like I had a choice” or “I wouldn’t have dated her if she weren’t the boss.”  This type of situation is enough to turn any cupid into a devil. 

Work romance statistics:  With work hours longer, and more women than men entering the workplace, an estimated 60-75% of employees have entered into an office romance at one time or another.  Of those, 20% claimed to have been dating a boss or supervisor.  Many of us know someone who met his or her significant other at work.  However, despite the commonplace of workplace romance, it is shocking that almost 75% of employers have no policy on office romance at all.

So how do you keep those little flings from getting flung into the courtroom?  Contrary to what you might believe, a policy that prohibits all dating in the workplace is rarely appropriate, unless very specific conflict issues have arisen as a result of workplace relationships.  In fact, policies forbidding all dating have backfired on many employers, creating an environment where employees seem to enjoy breaking the policy because of the risk involved and lose respect for other management policies.  In addition, California employers must stay aware of the broadly worded provisions of the California Labor Code that forbid employers from discriminating against an employee or applicant for lawful off-premises conduct during nonworking hours. 

What about a “love contract”?  The idea of a “contract” may seem distasteful when it comes to romance.  After all, there is nothing romantic about sitting down with a human resources representative, copping to a relationship with a co-worker or supervisor, and committing the nature of that relationship to paper.  However, as an employer, failing to do this could lead to a sticky situation in the event the relationship fails and no one bothered to document it in its honeymoon phase.

What is a love contract?  A love contract is essentially an agreement between two consenting adults to clarify that the relationship itself is, in fact, voluntary and legitimate and not the product of a subordinate being forced into something untoward because of the imbalance of power between him or her and his or her supervisor. 

It is intended to capture the intentions when the relationship is working—so that when it isn’t—a party will have a significantly harder time demonstrating this was part of a sexually predatory scheme on the part of a randy colleague.  Both parties acknowledge up front that’s not the case.  At this time, there hasn’t been a case where the validity or coercive nature of a love contract has really been challenged, but regardless of the result, this type of agreement will serve as a powerful evidentiary tool and, at the outset, a reminder to the employees that they need to behave appropriately in the workplace.

When to use a love contract:  To decide whether a love contract is appropriate, review the following factors:
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