How To Have A Workplace Romance Without Getting Fired And Sued: Advice From Employment Lawyers

Is it ever okay to start a workplace romance? It’s an age-old question, the subject of countless comedies and dramas, and yet there are no easy answers. However, guidance from employment lawyers can at least help you prevent your love life from getting you and your company into major legal trouble—as in the high-profile case of McDonald’s Corporation and its former CEO Steve Easterbrook.

With that story in the news, I asked two employment attorneys to give their tips about dating and romantic relationships between co-workers. Their advice is worth heeding.

How It Can Go Wrong: Workplace Romance In The News

The recent story of Steve Easterbrook, a former CEO of McDonald’s Corporation fired last November by its board of directors, could be a textbook example of how not to do office romance. Allegedly, he abused his power to have inappropriate sexual liaisons at work and then lied about it. According to the news release that McDonald’s issued when he was fired, the board found he violated company policy and demonstrated “poor judgment involving a consensual relationship with an employee.”

Then, on August 10, more allegations came out. In its 8-K filing with the SEC, the company disclosed information that emerged from an internal investigation. It claims that Mr. Easterbrook:

• lied to the company and the board
• destroyed information regarding inappropriate personal behavior
• had been involved in sexual relationships with three additional company employees prior to his termination, all in violation of company policy

The board states it would not have approved the terms of Mr. Easterbrook’s separation agreement if it had then known these findings. Now it is suing him to recover the compensation and severance benefits it would not have given him if he’d been terminated “for cause.”

The legal complaint filed in the lawsuit claims further misconduct by Mr. Easterbrook, exposing many vivid details. For example, concerning his sexual involvement with a person referred to as “Employee-2,” the company’s complaint says “the date and time stamps of the photographs of Employee-2 also conclusively show that Easterbrook approved a special discretionary grant of restricted stock units—worth hundreds of thousands of dollars—to Employee-2 shortly after their first sexual encounter and within days of their second.”

The board took immediate action to claw back previously approved pay by preventing Mr. Easterbrook from exercising any stock options or selling any company stock issued for outstanding equity awards, such as from performance-based restricted stock units. The company also seeks, among other things, compensatory damages for all the amounts paid to Mr. Easterbrook under the separation agreement and other costs and expenses incurred by the company because of his misconduct.

Love Is Blind, But You Still Need To Know The Risks

I’ve heard jocular advice that any workplace romance should always be with a superior—if it goes sour, you then have extra leverage for a sexual harassment or retaliation claim. Others joke that to head off legal problems you can just marry the colleague you’re involved with.

But those are just jokes. Seriously, what do you do if you and a co-worker are hopelessly smitten? Is it okay to date and have a relationship? What do you need to understand beforehand? For guidance, I turned to two experienced employment lawyers: Robert L. Duston, with the Washington DC office of Saul Ewing Arnstein & Lehr, and Amy Carlin, with the Boston law firm Morgan Brown & Joy.

Rob’s Rules

Robert Duston provided a list of dos and dont’s drawn from his experience with cases and investigations involving workplace relationships.

• Know your company’s rules on personal relationships and the risks. Follow them.
• Make sure it’s consensual—and document it. If not a formal agreement, keep the cards, love notes, emails, etc. Stories will change later. The other person is probably doing the same, and what he/she saves may be selective.
• Avoid affairs with direct and indirect reports. Where there is a power difference, there is the risk of a claim of implied coercion.
• If the other person is a key employee for the company, don’t do it. If or when the relationship ends, one of you is going to leave. If your ex departs, you will be blamed for the company’s loss of talent.
• Don’t use company email and phone lines. They leave a trail in IT that never goes away.
• Don’t photograph, film, or exchange sexual pictures, texts, or emails. They have led to the fall of many high-level people.
• Don’t imply or offer money, promotions, travel, etc. for sex. That’s illegal.
• During the relationship, don’t give company money, benefits, or promotions to your partner. You may have heard of the “paramour” exception to sexual harassment law. However, even if the actions are “just” favoritism, they may lead to gossip and suspicion and imply a quid pro quo.
• Don’t threaten retaliation—that makes the sex a quid pro quo. It’s illegal.
• Don’t retaliate when it’s over. Period. No matter how nasty the breakup. It’s illegal.
• If she/he stops the affair, do not pursue. No means no. Anything you do may be seen as stalking or harassment.
• Recognize that when the relationship ends, if your lover loses his/her job, promotion, etc., there will be a claim or lawsuit, even if you had nothing to do with it.
• Be prepared for the relationship to become public. It’s nearly impossible to have an affair at work without others finding out. There is always a trail of connections.
• Report your conduct to your boss before someone else does.
• If confronted by your boss—or attorneys doing an investigation—tell the truth. The whole truth. Lying, whether outright or by omission, will come out eventually, and will make matters worse.
• Be prepared for the employment consequences. At a minimum, the two of you are going to be separated in the organization. If someone is going to be demoted or transferred, it’s more likely in the #MeToo era to be the higher-level manager.
• Don’t do this repeatedly. One romance at work could be just two people who fell for each other. Multiple affairs show a potential pattern of sexual harassment or abuse of power.

Amy’s Answers

Amy Carlin, who represents employers and individuals in sexual harassment cases and has conducted investigations connected to workplace harassment, emphasizes that the company environment and culture “really sets the tone for whether there is going to be a problem with sexual relationships in the workplace.” The leaders in the business need to model professionalism and workplace norms. One thing she has noticed since the scandals of Harvey Weinstein is that most organizations have realized “it is no longer okay to protect a bad actor, regardless of how powerful that individual is.”

Her advice:

• Employers can have policies that require disclosure of sexual relationships at work (proactive disclosure is good protection for companies and the employees involved), and can also have policies that prohibit relationships between supervisors/managers and supervisees.
• Employers should provide training to managers and employees on sexual harassment that educates managers on how engaging in sexual relationships with co-workers and subordinates can subject themselves and their employers to liability; and they should educate all employees on the importance of reporting inappropriate sexual conduct at work.
• Love contracts can be used as a tool in the workplace to protect the company and individuals—a “love contract” is a signed acknowledgement in which each party to the relationship confirms that the relationship is consensual. This is usually used when there is a reporting relationship between the individuals involved in the relationship.
• Do not pursue the object of your affection if the person breaks up with you. This is one of the biggest problems that she sees that can lead to sexual harassment claims in the workplace—when the brokenhearted person won’t take no for an answer. That sours the workplace and can create a hostile work environment.

According to Ms. Carlin, the bottom line is that the workplace is not the place to have a romantic relationship which you have to keep secret. That will lead to trouble for you and your organization—everyone thinks their situation is going to be different, but it never is.