Lessons from David Letterman: Ten Reasons Why You Should Worry About Workplace Romances

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A Legal Newsletter for Employers & Human Resource Professionals By: L. Diane Tindall, Mary M. Williams and J. Kellam Warren Attorneys-at-Law

Our Business Is Law WYRICK ROBBINS YATES & PONTON LLP

Issue 42 – Fall 2009

Lessons from David Letterman: Ten Reasons Why You Should Worry about Workplace Romances

If you picked up the latest copy of People Magazine or watched Entertainment Tonight recently, you are probably aware of the unfolding story of an attempted blackmail of David Letterman by a news show producer and Letterman’s confession on his late night television program that he has had multiple sexual relationships with women who work on his show. CBS has made clear that Letterman is not its employee, but an employee of the production company Worldwide Pants. Worldwide Pants has issued a statement that Letterman has not violated any company policies. Letterman decided to take some time off to focus on his relationship with wife and young son. Reactions among viewers have been mixed. Stay tuned for more on this situation.

What does all of this have to do with HR and employment law? Although some employers discourage workplace romances and others prohibit them entirely, a survey by CareerBuilder.com revealed that forty percent of workers surveyed had dated a co-worker at some point during their working careers, and eighteen percent acknowledged two or more such relationships. While it may be impossible to completely eliminate office romances, there are some steps that an employer should take to minimize its legal exposure, including preparing a written office relationships policy. With apologies to David Letterman, below are the top ten reasons why an employer should have a policy that addresses the issue of office relationships.

10. Sometimes love does mean you have to say you’re sorry. Only a handful of states (including North Carolina) still recognize a cause of action for the so-called “heart balm” torts of alienation of affection and criminal conversation. These claims are brought by a wronged spouse against a third party

NOT LEGAL ADVICE: This publication is not to be considered specific legal advice and should not be relied upon in lieu of advice from an attorney. Each client’s situation is unique, and if you have need for legal advice, you should seek advice from an attorney. CIRCULAR 230 NOTICE: Any information regarding any U.S. federal tax matters contained in this communication is not intended or written to be used, and cannot be used, as advice for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Issue 42 – Fall 2009 Page 2

for interference with the marital relationship. The good news for North Carolina employers is that on October 1, 2009, a state law went into effect providing that a cause of action for alienation of affection or criminal conversation may now be brought against only a natural person, and not a business entity. Prior to this new law, an employer company could be sued for the employer’s alleged complicity in a spouse’s adulterous affair. Depending upon the facts, there is still a possibility that an employer could be sued for tortious or even intentional infliction of emotional distress for allegedly allowing or encouraging married employees to commit adultery.

9. Many office items are dangerous when thrown. Think staplers. Potted plants. Laptops. What happens outside the office doesn’t necessarily stay outside the office. Spats and lovers’ quarrels can turn into big problems when two employees work closely together. The problem compounds itself when one of the individuals has to direct the other: “Honey, I know you’re still mad at me for being such a jerk last night, but you need to redo these five hundred copies because of a typo on page five.”

8. “That’s what she said”--It’s not slander if it’s true. If your company is lucky enough to be hiring, it won’t help your recruiting efforts much if the CEO is sleeping with his administrative assistant or if the position you are hiring for involves working with individuals who are in a relationship. If you think you can keep these facts hidden, think again. Your employees will know, and will talk about it. While in show business there may not be such a thing as “bad” publicity, in most other businesses, professionalism and proper decorum make for a good and productive workplace.

7. All work and no play may make Jack a dull boy, but it sure makes the office more productive. Time spent in the office flirting, gossiping, sending emails and planning dates is time not spent working. Relationships can be distracting, both to the individuals involved in the relationship as well as to their co-workers. In some cases, the on-the-job dallying becomes much more serious, as where the couple has extended closed door “meetings” or three hour lunches. Social events and business trips become less focused on business and more on personal “pastimes.”

6. Giving a raise is cheaper than paying for a divorce. As David Letterman can attest, an illicit office romance makes the participants vulnerable to threats of exposure and blackmail. An unscrupulous employee can attempt to extort a raise or bonus on threat of tattling to a cheating employee’s spouse. Especially when it involves management-level employees, such vulnerability can adversely impact the entire organization.

5. All is not fair in love and war (especially love). Even where an office romance is not adulterous, it can create morale problems and fairness issues. Where the employee who is in a romantic relationship with the boss receives a benefit, his co-workers will think that the benefit was unfairly conferred due to the relationship and not for his job performance. This perception can lead to morale problems and could even be the basis for a hostile work environment sexual harassment claim.

4. When it’s over, it’s not really over. Once an office romance has run its course, you no longer need to worry, right? Not so! An employee who ends the relationship can claim retaliation for any adverse action taken against him by the former lover. Think: “John, I am happy that you have found someone new, and, by the way, I am demoting you to file clerk.”

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3. There’s a price to pay for every promise. The reporting relationships in most every workplace create inequalities in bargaining power. The manager who controls raises, bonuses and performance reviews will always have some degree of control over those employees who report to her. In a normally functioning job unit, the manager rewards good performance and discourages bad. However, if you throw a relationship into the mix, the incentives for good behavior can become (or appear to become) rewards for the relationship itself. “Quid pro quo” (or literally “this for that”) sexual harassment is based on the premise that an employee has been rewarded for engaging in sexual behavior with a supervisor or punished for withholding sexual favors. Generally speaking, an employer can be held strictly liable for such a claim, meaning that the employer would have no possible defenses to assert.

2. It takes two to tango, but only one to file an EEOC charge. Employees who are not involved in a workplace romance but who are forced to witness the sexual shenanigans of their co-workers may have a hostile work environment sexual harassment claim depending on the nature and severity of the sexual conduct. While in the workplace, employees often will have no choice but to share second hand in their co-workers amorous experiences. Listening to fellow workers discuss their relationship in graphic detail on a daily basis and/or watching behavior that, while consensual to the couple, may be offensive to the onlooker, will give rise to a valid claim.

1. Saying it’s consensual doesn’t necessarily make it so (especially after the ugly breakup). So, you have two co-workers in a romantic relationship. They travel together. They lunch together. They email each other. Their working relationship seems to be going just fine. Then, he meets someone else and decides to tie the knot. (Can you see what’s coming?) Jilted co-worker reports to the human resources department the day after the engagement is announced, claiming she was forced into the relationship in order to keep her job. While everyone thought the relationship was consensual, the spurned employee now claims she was the victim of sexual harassment. (Some employers will ask that employees in consensual relationships sign so-called “love contracts,” affirming that the relationship is in fact consensual. However, if the employee claims she was coerced into having sex, she will also likely claim she was coerced into signing the agreement.)

For all of these reasons, an employer would be well-served to have in place and abide by a carefully written personal relationship policy. Most experts agree that a policy prohibiting any relationships is unrealistic. However, at a minimum, your relationship policy should have the following provisions:

• A definition of what relationships are covered by the policy;

• A prohibition on relationships between those who are in the same reporting structure;

• An absolute ban on supervisors dating subordinates;

• The required reporting of relationships within the workplace that exist or that develop; and

• A consistently-applied procedure to address relationships that exist or develop. Typically this will involve a transfer of one employee and/or a possible termination of employment. Often, to avoid claims of discrimination, the policy will require that the employees choose who will be transferred or terminated.

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So don’t let your office become a bad version of “stupid people tricks.” Plan ahead for office romance, and when you learn of a relationship, take prompt action to address the situation. At a minimum, a well thought out policy may help you avoid an awkward or unprofessional office atmosphere; you may also avoid exposing the company to legal risks including charges of a hostile work environment or quid pro quo sexual harassment. Are you listening, David Letterman?

SPECIAL CLIENT ALERT: RECENT AMENDMENTS TO THE FAMILY AND MEDICAL LEAVE ACT

If you have recently amended your FMLA policy to comply with the amendments to the Act effected by the National Defense Authorization Act for Fiscal Year 2008 and the final revisions to the FMLA Regulations that went into effect January 16, 2009, it is time to pick up your drafting pen once more. On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), which expands the new provisions of the FMLA relating to exigency and caregiver leave for military families. Specifically, H.R. 2647 expands exigency leave benefits to include family members of “covered” active duty service members. Further, H.R. 2647 expands caregiver leave to include veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness that occurred at any time during the five years preceding treatment. These changes took effect immediately. Employers should contact their employment counsel to ensure compliance with these new FMLA amendments.

For more information on the topics addressed in this newsletter, contact Diane Tindall at [email protected], Mary Williams at [email protected] or Kellam Warren at [email protected].

Current and past issues of The Resource are available in PDF format through our firm’s website, www.wyrick.com, at the “News and Articles” link.

Wyrick Robbins Yates & Ponton LLP 4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607-7506 (919) 781-4000 www.wyrick.com