Stuart Rudner presents a webinar to the HRPA on the law behind relationships in the workplace.

1. HRPA Webinar
February 10, 2016
Stuart E. Rudner
&
Richa Sandill
The Dos and Don’ts of
Workplace Romance

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3. POLL
Have you
1. Dealt with workplace romance in your
office/organization
2. Dated a colleague
3. Met your spouse/significant other at work
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4. Is this really an issue?
Forbes 2015 “The State of the Office
Romance”
 37% of workers admitting to office
relationships
– 30% of these led to marriages
 Retail most likely sector to find romance (62%)
 followed by technology (60%) and HR (57%)
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5.  51% admitted to workplace
romances in Vault.com survey
– 47% aware of infidelity of
– 14% reported career setbacks
related to affair
 Michelle Obama was Barack’s
supervisor
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6. Dangers of Workplace
Romances
 Can lead to:
– Conflicts of interest
– Jealousy / Poor morale
– Effect on career advancement
– Performance issues
– Inappropriate workplace behaviour
– Workplace harassment
– Constructive dismissal
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7. Supervisor/subordinate relationship
 Cannot have one partner controlling other’s:
– Career trajectory
– Remuneration
– Workload
– Reviews
 Risk of beneficial treatment or perceived
beneficial treatment
 Risk of unfavourable treatment of someone who
has conflict with subordinate employee
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8. Ban inter-employee
relationships?
 Many relationships start in workplace
 Workplace relationship is not a problem in
and of itself
 Probably can’t stop it from happening
 Only problem if it affects the workplace
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9. Implementing Policies
 Publicize policies
 Train all employees: staff, managers,
supervisors, executives
 Monitor behaviour
 Discipline offenders
 Update regularly
 Incorporate into employment contracts
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10. Conflict of Interest Policy
– Define conflicts of interest
– not specific to romantic relationships
 Address office romances as one example
– Address how conflicts dealt with
– Take prevention measures when you learn
about a potential problem
– Be consistent
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11. Policies
 Disclosure
– Require disclosure of potential conflicts of
interest, including romantic relationships
– Only require disclosure if potential impact on
the workplace or conflict
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12. Policies
 Harassment
– Harassment-free workplace
– Provide reporting mechanisms
– Duty to investigate
– Protections from retaliation
– Repercussions for knowingly making false
allegations
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13. When a relationship is reported
 Address any conflict or potential conflict of interest
– Transfer one of the employees
– Change reporting structure so the subordinate reports
to different manager
– Change control over compensation, workload,
promotions etc
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14. BUT
 Separating employees can be tricky:
– Small workplaces
– Senior employees
– Employees may not want to be separated
– Knowledge that this is the repercussion can
discourage employees from disclosing the
relationship in the first place
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15. When a relationship is reported
 Agreement
– Have both employees sign agreement that:
 Relationship is consensual
 They have disclosed the relationship to the
Company
 They agree the relationship cannot and will not
affect the workplace
 Discuss concerns and expectations with
senior employee
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16. Non-disclosure of romantic
relationship
 Many employees may not want to disclose their
relationship to the employer
 Relationship may involve extra-marital affair
 Company has no place in the bedroom
 But Company has right to know about potential
conflicts of interest or potential liabilities
 Breach of policy, dishonesty
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17. When a workplace relationship
goes bad
 One party breaks it off
 Interested party is spurned
 Can lead to bad working relationships,
retribution, workplace harassment, or even
worse
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18. Bill 168
 Genesis was murder of nurse, Lori
Dupont, by ex-boyfriend, doctor working
at same hospital, after she ended their
relationship
 Extreme example of how things can go
very badly
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19. Bill 168
 Hospital knew about ongoing
harassment and threat against Ms. Dupont
 Failed to address it
 Scheduled to work together the day Ms.
Dupont was murdered
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20. Bill 168
 Employer’s duty to provide safe and harassment-
free workplace
 Take harassment complaint seriously
 Duty to investigate
– Fairly
– Thoroughly
– Promptly
– Document!
– Do not make a decision ahead of time
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21. Supervisor’s duty
 Supervisor who learns of harassment from
workplace romance must act
 Has to report it to HR, management,
ensure that it is addressed and
investigated
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22. Supervisor’s duty
 Supervisor runs risk of being named
personally in lawsuit if she or he does not
advise the Company about harassment
issue
 Company can also be liable if supervisor
knew about harassment but didn’t report
it
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23. Performance Issues
 Allowing relationship to get in way of work
 Flirting on company time or through company
means (i.e., email, internal chat software)
 “Covering” for one another
 Long breaks
 PDA in the workplace
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24. Effect on other employees
 PDA or other inappropriate behaviour in
the workplace can make others
uncomfortable
 Attempt to hide relationship could lead to
threats or mistreatment
 Perception of unfair treatment or
favoritism
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25. What should employees do?
 Report relationship
 Make sure relationship does not interfere with the workplace
 Keep a record of relationship
 Be honest if asked about relationship
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26. Case Law Examples
 Reichard v. Kuntz (2011): “non
fraternization policy” at workplace required
disclosure of romances
– Employee begins extra marital affair at work
– Repeatedly denies affair to supervisors
– Co-worker confidante admitted it to
supervisors
– Led to suspension, severe loss of trust, and
dismissal for cause that was upheld in court
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27. Case Law Examples
 Dillon v Dillon Hillstead Melanson (2015):
– Employer raised issue of sexual harassment as
cause for dismissal
– Plaintiff’s extra-marital relationship with client
at work had been allegedly disruptive; lied
about relationship to bosses
– Cause was found by court in plaintiff’s
dishonesty about affair
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28. Case Law Examples
 Dooley v. CN Weber Ltd. (1994):
– Plaintiff dismissed after engaging in second
sexual relationship with a female subordinate
in spite of clear warnings not to continue to
do so
– Court found wrongful dismissal
– No evidence of detriment to company
– Not unreasonable for such relationship in
modern society
– No existing policy
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29. Bottom Line
 Employers are not to intrude on
employees’ personal lives
 But if it impacts workplace…
 Need clear policies
 Need to address concerns
 Protect privacy
 Enforce policies
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30. WORST CASE SCENARIO:
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31. But if it works out:
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Stuart E. Rudner
srudner@rudnermacdonald.com
416.640.6402 or 905.530.2484
Web: www.rudnermacdonald.com
Twitter: @CanadianHRLaw
LinkedIn: Connect with me, join the
Canadian HR Law Group and visit the Rudner
MacDonald Page
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