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Love is in the Air – But Should it Be?

February is the month where romance blossoms – which means it is a great time for employers to review their policies regarding employee fraternization and intracompany relationships.

How does an employer go about regulating romantic relationships between employees? It can be tricky. When creating workplace policies, employers should keep Labor Code section 96(k) in mind. Labor Code section 96(k) provides that the California Labor Commissioner may assert claims on behalf of employees for loss of wages that may occur as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

How is an employer able to enforce its fraternization and relationship policies without risking liability? Good thing for employers, there are limitations on what claims can be brought under section 96(k). To bring a claim under section 96(k), an employee needs to show that a constitutional right was violated, which does not usually include an office romance. Moreover, California courts have held that employers are permitted to prohibit certain types of workplace dating relationships, either because they could affect morale or cause security risks. Similarly, California permits policies that require a supervisor to bring a consensual relationship with an employee to management’s attention in order to ensure there is no unfair or preferential treatment.

Employers may also want to revisit their blanket policies against fraternization that put complete bans on intracompany dating. Such policies often call for an employee to leave the company if the policy is violated. While this may be necessary depending on the industry or size of the company, enforcement of such policies may prove to be difficult. It is unlikely employees will be forthcoming with relationships if doing so means losing their jobs. A different approach may be to establish a middle ground policy that sets reasonable limitations, expectations, and disclosure requirements on intracompany romantic relationships.

Setting aside the substance of such policies, employers should endeavor to apply them uniformly and consistently, to avoid the appearance of giving preferential treatment to certain employees or relationships based on protected characteristics.

Employers should also consider providing their employees with further guidance on how to handle office romances in state-mandated harassment prevention training. Such training often covers topics such as appropriate work contact and conversation.

Jackson Lewis P.C. © 2020

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About this Author

Patrick C. Stokes Labor & Employment Attorney Jackson Lewis Law Firm Silicon Valley
Principle

Patrick C. Stokes is a Principal in the Silicon Valley, California, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

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