When attorney Mark Kluger first heard of the idea of employers asking their workers to agree to “love contracts,” he admits he was half-waiting for a punch line.
But it wasn’t a joke … nor was it the premise for another reality TV show.
And, in the end, Kluger himself would become a serious proponent of these blueprints for how to handle coworkers dating, after being asked to draft one up for a client. That was nearly a decade ago. Since then, employment law attorneys like him have come to believe these agreements, also called consensual relationship contracts, have only become more relevant, as the #MeToo movement and remote working give employers reasons to reflect on workplace romance.
Kluger, co-founding partner of the Fairfield-based Kluger Healey LLC, described these contracts as bringing relationships between employees to the surface. As part of employees flagging their romantic involvement, they agree to abide by sexual harassment policies and other ground rules that might be imposed by employers.
Typically, the employees are also obligated within the terms of these contracts to notify their employer when the relationship ends, and whether the former partners have any residual uncomfortable feelings about interacting with one another.
“They might also be asked to agree in the document to accept whatever remedy the employer proposes to that,” Kluger said. “For example, if you work in the same department with someone you broke up with, you might agree in these contracts that there wouldn’t be a protest if one of the employees is moved to another department.”
Most of the language within the contract is meant to keep coworker relationships from negatively impacting work environments, including discouraging outward displays of affection that might prove distracting.
These “love contracts” would be familiar to human resources professionals, as well as larger businesses.
“But this is still not a widespread practice,” Kluger said. “Of my clients, only about 10 to 15% have utilized it.”
Some companies have chosen to prohibit workplace relationships entirely. Kluger, who consults on the management side of employment law matters, prefers an approach that acknowledges that these workplace relationships are going to happen — and that it’s better for employers to be alerted to them when they do.
It might be difficult today for employers to monitor that otherwise, given that the pandemic has people dating in the same way they work: remotely.
In fact, a Society for Human Resource Management survey from a year into the pandemic found that there was a 27% annual increase in the amount of the country’s workers reporting that they were either in a workplace romance or had been in one. The HR trade association referenced a newfound desire for meaningful connections among workers during a period of isolation.
“Although I don’t know the data on it … I really think that with the amount of people having remote dates and then in-person dates, we’re back to pre-pandemic levels of coworkers dating,” Kluger said. “At the same time, claims of sexual harassment were down during the pandemic, and now are back up.”
Kluger added that, with the #MeToo movement gaining prominence in recent years, states have passed laws that make it easier to bring claims of workplace sexual harassment against employers. For employers, employment law attorneys perceive having a legal agreement that a relationship is consensual as an added layer of protection.
For employees, however, putting love under the corporate microscope isn’t always so pleasant.
Saying the obvious, Kluger warns of the “mixed bag” of reactions employers may encounter in proposing workers sign these contracts. Legally, there’s no reason employers can’t do it. But some are going to see it as prying.
Employees, in general, aren’t head-over-heels about opening up to employers about their personal lives.
“What’s interesting about it is that their feeling about it maybe depends on who the aggrieved party ends up being,” Kluger said. “I’ve seen examples of things going bad and a woman who felt at the end of a relationship that she was being harassed by a former lover. In the end, she appreciated having been open about it, even having the enhanced scrutiny. If you asked the guy on the other end, he might have said he didn’t want employers intervening in relationships.”
Ultimately, Kluger recommends transparency when it comes to these matters in large part due to how relationships can unravel.
In the example Kluger gave of the worker who felt retaliated against by former lover, there was talk of the employer being sued for not protecting their employee from harassment.
“That issue ultimately didn’t proceed to litigation,” he said. “But I think, someday, we will see that. And I’ll be curious to see how the courts treat these contracts being used as defense in litigation.”
