Recently, Culture Engineered was asked by the Huffington Post how an employee should ask a co-worker out on a date.  While a topic dreaded by most HR and People professionals, it led us to consider whether or not a non-fraternization policy still holds any relevance in today’s workplace.  Do these policies protect the company legally?  How does workplace romance impact a company’s culture?  Below we consider these challenges faced by employers managing employee conduct.

Non-Fraternization Policies and the Law

Traditionally, a company policy is designed to keep the balance of power between employees (as individuals) and the company as a whole – defining good versus bad conduct and consequences that are associated with the bad.  But, can policies apply to conduct outside of work such as with romantic relationships?   A quick glance at statutes in California (Lab. Code § 96k), Colorado (Rev. Stat. § 24-34-402.5), Louisiana (La Rev. Stat § 23:961), New York (N.Y. Lab. Code § 201-d), and North Dakota (ND Cent. Code Sec. 14-02.4-01), such a policy seems useless in preventing workplace romances from developing.  Local governments within these states have similar statutes and rules prohibiting employers from taking adverse action on employees for off-duty, off-company-premises conduct, so long the conduct is lawful.  Looking deeper however, interpretation of these statutes is narrow when it comes to office romances, failing to recognize a romantic activity as a “protected recreational activity”.  So, while non-fraternization policies may cause some gray areas to surface within a company, the good news is that when challenged, they are being upheld.  But a word of caution:  be specific.  A broad non-fraternization policy may constitute as interfering with employee rights to engaged in concerted activity, protected by the National Labor Relations Act (NLRA) – a BIG NO-NO.  These rulings have not been so favorable for employers (ie Guardsmark, LLC v. NLRB, 2007 WL 283455 D.C. Cir. 2007).

Romance Impact to Culture

Everyone likes a good love story.  How is this viewed today by employees when it’s happening in the workplace?  In the case of two California Department of Corrections employees working at a prison where the warden was having an affair with three other employees – not so good.  Although all employees engaged in the “relationship” were consenting individuals, the situation still resulted in a sexual harassment suit.  Not that surprising?    How about the fact that no sexual advances or harassing comments had ever been made to either plaintiff?  Miller v. Department of Corrections, No. S114097, 2005 WL 1661190 (Cal. 2005) plaintiffs alleged the favoritism shown to those who engaged in a sexual relationship with the warden caused the plaintiffs to be subjected to a hostile work environment.  The California Supreme Court ruled in favor of the plaintiffs causing companies even more reason to be concerned about workplace relationships – even when consensual.  But with all the studies on workplace camaraderie and positive correlation with employee engagement, there has to be some benefit to employees liking each other enough to date, right? Unfortunately, modern studies on this issue bring something we already associate with workplace romances – complexity.  In a 2016 study, researchers sought to investigate the relationship between romance in the workplace and employee engagement.  Employees participating in a romantic relationship with a coworker for the purpose of improving their workplace status had lower levels of employee engagement.  While this result was anticipated by researchers, the impact uncertainty plays in workplace relationships with regards to engagement was not.  Rather than a decrease to employee engagement, engagement increases the more uncertainty within the relationship!  So while a recent CareerBuilder survey found 37% of people say they have dated a coworker of which 33% have led to marriage – clearly not all coworkers are thrilled about it.  But you have a policy, so that can’t be happening in your company, right?  The same survey shows that 45% of survey were unsure if their company had a dating policy.  Yes, another study to suggest only HR reads the handbook – great.

In summary – some guidance is needed in the workplace and when it comes to office romances.  It’s unlikely that a healthy balance will happen organically.  Too strict of a policy – a company is likely to lose talent and make for an unrealistic vibe in which employees are forced to leave or lie.  Too vague of a policy – layout the welcome mat for the NLRB and expect to have some weird discussions with your leaders (23% of CareerBuilder survey participants admitting to dating someone in the office say they dated someone at a higher level within the company).  Take a proactive approach.  Develop your policies around the culture you wish to create rather than reactively creating policies solely to ward off lawsuits.  Only good employees follow policies, bad employees look for loopholes – and find them.  Review your policies today – who are you tailoring them to?