“Love is a [Courtroom] Battlefield”

“Love is a [Courtroom] Battlefield”

The Worst Kind of Valentine's Card is Handed Over by a Process Server

"We are young. Heartache to heartache we stand. No promises, no demands." - Pat Benatar

Today is Valentine's Day, in case you may have forgotten. To some, this is a holiday filled with reminders of gushing romance and how everything is right in the world. To others, a bitter reminder of loneliness and a date with the gym (or a solo bottle of wine) as they search for that special someone. Alas, a couple of swipes to the right or a casual wink at the water cooler this morning and you never know what the future holds!

Americans are working longer hours than ever and spending record hours in the office from the beginning of their careers. Social interaction and dating have taken a backseat to career advancement as more people seek to place themselves in a better financial position before searching for a mate. While the circumstances have changed, the fact that human beings have emotions and attraction have not, which has led to an increase in interoffice romance.  Indeed, an article by Forbes magazine discussed a 2014 survey of 8,000 employees about this very subject.  The survey revealed that 40% of employees had engaged in at least one interoffice tryst (either relationship or physical encounter) and 17% admitted to engaging in this sort of behavior multiple times.

Relationships between co-workers are not always a bad thing. As previously mentioned, we spend a lot of hours in the office, and constant encounters and conversations with co-workers often lead to attraction, romance, and dating. This is all well and good until the relationship likely heads south. As Marriage expert Hellen Chen stated in a 2013 seminar, 85% of relationships do not end in marriage or even long-term monogamy. This means that the office encounter you or your employees are having is overwhelmingly likely to end badly, and supervisors and the company are often left to pick up the pieces. With this in mind, we take a look at some of the concerns employers most commonly express, and how they can be addressed.

Calls from clients expressing concerns about romantic relationships at work most frequently start with names and inappropriate verbs. Once the "fact" portion of the client call is over the first question is always "am I going to be sued for harassment when this goes bad." After a description of the legal standard for harassment, the conclusion is often that an environment where employees are commonly dating one another and engaging in one-night stands is an environment where harassment is very likely to occur. This is particularly the case where supervisors are entering into relationships with one another.

To illustrate the dangers of being too relaxed with a romance policy of I often use the example of a place I worked at when I was just out of college. The environment was "fun" and the employer encouraged social behavior. They even sponsored weekly happy hours attended by executives, managers, and lower level employees. These happy hours often lasted late into the night, with after-parties at high-level employees condominiums and extreme drug and alcohol use. Inevitably, company employees were coming into work on Friday hung over, unproductive, and chatting about the latest tryst that occurred the night before. When a very low-level employee started an open relationship with her boss, things exploded at one of these happy hours when the boss was caught with another woman outside the bar where the event was held. As you can imagine, the employee left the company shortly the "incident" and on Valentine's Day 2003 a process server showed up with a complaint alleging sexual harassment, sex discrimination, failure to prevent harassment, and a laundry list of other employment law violations. The lawsuit led to a $1M plus settlement and extreme embarrassment for the company.

The story above is true and illustrates the danger of allowing an environment where employees are engaging in dangerous dating behavior that is unchecked by the employer. Although nothing in the law (in most states) prohibits an employer from instituting a policy prohibiting employees from dating one another, at this point in time such a policy is impractical. That said, there are several steps that can be taken to ensure that workplace romances are at least managed.

It is extremely important to balance your company's desire to have an image of "fun" and "youthful exuberance" with the need to maintain a professional and productive work environment. The true benefits of being the "cool," "relaxed," and "party" environment are almost always outweighed by the risks portrayed by the story above. You need to remember the old adage that it is called work for a reason, and people are free to socialize with one another after work, off premises, and without the endorsement or prohibition of the company. There is no rule that says you cannot create a positive working environment that reinforces camaraderie and reward without sponsoring alcohol-fueled work-sanctioned "happy hours" and office sponsored dating pools.

All that said, it is very important that your company craft a written workplace fraternization policy. Taking steps to limit or reign in workplace dating and romance are to everyone's benefit. First, it is essential to prohibit employees from dating or having sexual relations with a supervisor. The ties to quid pro quo harassment and other forms of abuse are simply too strong to allow employees to date their boss. Second, any other restrictions you may place on employee dating (such as requiring that one employee voluntarily transfers out of the department if dating a co-worker) must be applied uniformly and in a non-discriminatory fashion. While implementing a blanket ban on workplace romance is not advisable, should you desire to maintain a level of control over the environment it is very important that you seek the advice of an experienced employment law attorney to help you craft your policy.

The day and age we are living in sadly dictate that we cannot afford to have nice things. In a perfect world, people would be finding mates at the office and living happily in harmony. Unfortunately, the office (like love) is often a battlefield. With people competing for jobs, dollars, and promotions it is risky to encourage workplace romance. While its existence is virtually inevitable, it is extremely important that you promote a culture of professionalism and responsibility so that you can keep answering the elevator door for the flower man, and avoid the Valentine's Day visit from the process server.

Syntrio is a leader in both the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of conflicts of interest within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our ethics and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on employment law and compliance that impact your company!

 

Written by Jonathan Gonzalez, Esq., Chief Counsel for Syntrio.

EEOC Releases Proposed Workplace Harassment Guidelines

EEOC Releases Proposed Workplace Harassment Guidelines

The EEOC recently released its Proposed Enforcement Guidance on Unlawful HarassmentThis 75-page document highlights the key strategies and points of emphasis the Agency seeks to use when investigating and prosecuting charges of workplace harassment. If implemented after public comment the document will not hold the force of a regulation but will provide key insight as to how and what the EEOC will focus on when determining whether or not a charge of harassment has merit, and therefore will be pursued by the agency and/or private Plaintiffs’ attorneys.

The Proposed Enforcement Guidelines make it clear that employers have a duty to maintain a working environment free of harassment and to take active steps to “minimize obvious risks of harassment.” The document also states (on pages 44-45) that failure to take advantage of preventative or corrective measures will result in the loss of a key affirmative defense to a hostile environment harassment claim.

If all of the above sounds scary, it should. The Proposed Enforcement Guidelines are a companion piece to a report released last summer by the EEOC’s Task Force Study of Harassment in the Workplace, which found that the Agency had a growing need for harassment prevention due to increased litigation and incidence of harassment even after years of focus on this particular form of workplace misconduct. The proposed guidance takes the Task Force’s findings one step further and gives the Agency’s investigators and prosecutors a road map for finding causation and liability on behalf of the countless employers who fail to take adequate steps to prevent harassment in the workplace.

Proposed Guidelines Provide Insight Into what Constitutes Effective EEO Compliance Training

Pages 73- 75 of the Proposed Guidelines provide some invaluable insight into what the EEOC considers effective anti-harassment training. Although not required by federal law (but required by state laws in California, Maine and Connecticut), the EEOC states “Regular, interactive, comprehensive training of all employees will ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.” This strong language validates what savvy compliance and HR departments already know: regular and routine harassment training is essential to the defense of charges of workplace harassment

The Proposed Guidelines emphasize the necessity of regular, interactive harassment training. If your business is not conducting harassment prevention training you need to worry, as the EEOC is about to begin seeking out companies who are not conducting training and not only attacking their defense to harassment charges, but likely auditing them for non-compliance with the Agency’s stated policy that employers need to take affirmative steps to prevent harassment in the workplace.

EEOC Outlines Components of an Effective Harassment Training Program

The Proposed Guidelines do employers the small favor of identifying what effective harassment training looks like, explaining that where live training is not practical, the training provided should be:

  • Championed by senior leaders;
  • Repeated and reinforced regularly;
  • Provided at every level and location of the organization;
  • Provided in all llanguages commonly used by employees;
  • Tailored to the specific workplace and workforce;
  • Designed to include active engagement by participants; and
  • Routinely evaluated by participants and revised as necessary.

Further, the EEOC explains several key facets of effective harassment training, stating that the most effective training contains the following elements:

  • Descriptions of unlawful harassment and conduct that, if left unchecked, might rise to the level of unlawful harassment;
  • Examples that are tailored to the specific workplace and workforce;
  • Information about employees’ rights and responsibilities if they experience, observe, or otherwise become aware of conduct that they believe may be prohibited;
  • Explanations of the complaint process; and
  • Explanations of the range of possible consequences for engaging in prohibited conduct.

Finally, the EEOC provides information about effective supervisor training, including risk factors for harassment and observation and leadership tactics that will help managers identify areas and individuals who may be at risk for victimization and/or harassing behavior in the workplace.

Syntrio’s Training Program Has Your Company Ready

The aforementioned EEOC guidance may seem daunting, but you need not worry, as Syntrio’s comprehensive workplace harassment training courses for managers and employees have covered the aforementioned points of emphasis for years, and are routinely updated to keep up with all changes in law, regulation and administrative policy. Furthermore, our courseware is fully interactive and customizable to the needs of your organization.

Make no mistake, the EEOC has identified training as fundamental to the avoidance of incidents of harassment in the workplace and is now quite clear about its enforcement guidelines on the subject. For years employers have struggled with identifying just what level of training is necessary to bolster a defense to charges of workplace harassment. Thankfully, the EEOC has provided new guidance that will help you understand just how serious a need harassment training is for companies of all sizes. The mantra that “training is not required by the law in my state” simply no longer fits. 

Syntrio is a leader in the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of conflicts of interest within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our conflicts of interest and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company!

 

Written by Jonathan Gonzalez, Esq., Chief Counsel for Syntrio.