DOL Issues New Joint Employer Guidance

By Kathleen J. Jennings (kjj@wimlaw.com)

The U.S Department of Labor (DOL) has been busy, at least when it comes to walking back proposed rules issued during the previous Administration. On April 1, 2019, the DOL announced a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements.

The Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages. This is a major issue for companies that could be potentially liable for wage and hour violations of contractually related companies, such as staffing companies and companies in franchise relationships.

In 2017, the DOL withdrew the previous administration’s sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment. That previous Obama-era guidance memo said that joint employment should be applied “as broad as possible” under the Fair Labor Standards Act.

Now the DOL proposes a four-factor test that would consider whether the potential joint employer actually exercises the power to:

  • Hire or fire the employee;
  • Supervise and control the employee’s work schedules or conditions of employment;
  • Determine the employee’s rate and method of payment; and
  • Maintain the employee’s employment records.

The proposal also includes a set of joint employment examples for comment that would further assist in clarifying joint employer status:

    (1) Example: An individual works 30 hours per week as a cook at one restaurant establishment, and 15 hours per week as a cook at a different restaurant establishment affiliated with the same nationwide franchise. These establishments are locally owned and managed by different franchisees that do not coordinate in any way with respect to the employee. Are they joint employers of the cook?

    Application: Under these facts, the restaurant establishments are not joint employers of the cook because they are not associated in any meaningful way with respect to the cook’s employment. The similarity of the cook’s work at each restaurant, and the fact that both restaurants are part of the same nationwide franchise, are not relevant to the joint employer analysis, because those facts have no bearing on the question whether the restaurants are acting directly or indirectly in each other’s interest in relation to the cook.

    (2) Example: An individual works 30 hours per week as a cook at one restaurant establishment, and 15 hours per week as a cook at a different restaurant establishment owned by the same person. Each week, the restaurants coordinate and set the cook’s schedule of hours at each location, and the cook works interchangeably at both restaurants. The restaurants decided together to pay the cook the same hourly rate. Are they joint employers of the cook?

    Application: Under these facts, the restaurant establishments are joint employers of the cook because they share common ownership, coordinate the cook’s schedule of hours at the restaurants, and jointly decide the cook’s terms and conditions of employment, such as the pay rate. Because the restaurants are sufficiently associated with respect to the cook’s employment, they must aggregate the cook’s hours worked across the two restaurants for purposes of complying with the act.

    (3)  Example: An office park company hires a janitorial services company to clean the office park building after-hours. According to a contractual agreement with the office park and the janitorial company, the office park agrees to pay the janitorial company a fixed fee for these services and reserves the right to supervise the janitorial employees in their performance of those cleaning services. However, office park personnel do not set the janitorial employees’ pay rates or individual schedules and do not in fact supervise the workers’ performance of their work in any way. Is the office park a joint employer of the janitorial employees?

    Application: Under these facts, the office park is not a joint employer of the janitorial employees because it does not hire or fire the employees, determine their rate or method of payment, or exercise control over their conditions of employment. The office park’s reserved contractual right to control the employee’s conditions of employment does not demonstrate that it is a joint employer.

    (4) Example: A country club contracts with a landscaping company to maintain its golf course. The contract does not give the country club authority to hire or fire the landscaping company’s employees or to supervise their work on the country club premises. However, in practice a club official oversees the work of employees of the landscaping company by sporadically assigning them tasks throughout each workweek, providing them with periodic instructions during each workday, and keeping intermittent records of their work. Moreover, at the country club’s direction, the landscaping company agrees to terminate an individual worker for failure to follow the club official’s instructions. Is the country club a joint employer of the landscaping employees?

    Application: Under these facts, the country club is a joint employer of the landscaping employees because the club exercises sufficient control, both direct and indirect, over the terms and conditions of their employment. The country club directly supervises the landscaping employees’ work and determines their schedules on what amounts to a regular basis. This routine control is further established by the fact that the country club indirectly fired one of landscaping employees for not following its directions.

    (5)  Example: A packaging company requests workers on a daily basis from a staffing agency. The packaging company determines each worker’s hourly rate of pay, supervises their work, and uses sophisticated analysis of expected customer demand to continuously adjust the number of workers it requests and the specific hours for each worker, sending workers home depending on workload. Is the packaging company a joint employer of the staffing agency’s employees?

    Application: Under these facts, the packaging company is a joint employer of the staffing agency’s employees because it exercises sufficient control over their terms and conditions of employment by setting their rate of pay, supervising their work, and controlling their work schedules.

    (6)  Example: An association, whose membership is subject to certain criteria such as geography or type of business, provides optional group health coverage and an optional pension plan to its members to offer to their employees. Employer B and Employer C both meet the association’s specified criteria, become members, and provide the association’s optional group health coverage and pension plan to their respective employees. The employees of both B and C choose to opt in to the health and pension plans. Does the participation of B and C in the Association’s health and pension plans make the association a joint employer of B’s and C’s employees, or B and C joint employers of each other’s employees?

    Application: Under these facts, the association is not a joint employer of B’s or C’s employees, and B and C are not joint employers of each other’s employees. Participation in the association’s optional plans does not involve any control by the association, direct or indirect, over B’s or C’s employees. And while B and C independently offer the same plans to their respective employees, there is no indication that B and C are coordinating, directly or indirectly, to control the other’s employees. B and C are therefore not acting directly or indirectly in the interest of the other in relation to any employee.

    (7) Example: Entity A, a large national company, contracts with multiple other businesses in its supply chain. As a precondition of doing business with A, all contracting businesses must agree to comply with a code of conduct, which includes a minimum hourly wage higher than the federal minimum wage, as well as a promise to comply with all applicable federal, state, and local laws. Employer B contracts with A and signs the code of conduct. Does A qualify as a joint employer of B’s employees?

    Application: Under these facts, A is not a joint employer of B’s employees. Entity A is not acting directly or indirectly in the interest of B in relation to B’s employees – hiring, firing, maintaining records, or supervising or controlling work schedules or conditions of employment. Nor is A exercising significant control over Employer B’s rate or method of pay – although A requires B to maintain a wage floor, B retains control over how and how much to pay its employees. Finally, because there is no indication that A’s requirement that B commit to comply with all applicable federal, state, and local law exerts any direct or indirect control over B’s employees, this requirement has no bearing on the joint employer analysis.

    (8) Example: Franchisor A is a global organization representing a hospitality brand with several thousand hotels under franchise agreements. Franchisee B owns one of these hotels and is a licensee of A’s brand. In addition, A provides B with a sample employment application, a sample employee handbook, and other forms and documents for use in operating the franchise. The licensing agreement is an industry-standard document explaining that B is solely responsible for all day-to-day operations, including hiring and firing of employees, setting the rate and method of pay, maintaining records, and supervising and controlling conditions of employment. Is A a joint employer of B’s employees?

    Application: Under these facts, A is not a joint employer of B’s employees. A does not exercise direct or indirect control over B’s employees. Providing samples, forms, and documents does not amount to direct or indirect control over B’s employees that would establish joint liability.

    (9) Example: A retail company owns and operates a large store. The retail company contracts with a cell phone repair company, allowing the repair company to run its business operations inside the building in an open space near one of the building entrances. As part of the arrangement, the retail company requires the repair company to establish a policy of wearing specific shirts and to provide the shirts to its employees that look substantially similar to the shirts worn by employees of the retail company. Additionally, the contract requires the repair company to institute a code of conduct for its employees stating that the employees must act professionally in their interactions with all customers on the premises. Is the retail company a joint employer of the repair company’s employees?

    Application: Under these facts, the retail company is not a joint employer of the cell phone repair company’s employees. The retail company’s requirement that the repair company provide specific shirts to its employees and establish a policy that its employees to wear those shirts does not, on its own, demonstrate substantial control over the repair company’s employees’ terms and conditions of employment. Moreover, requiring the repair company to institute a code of conduct or allowing the repair company to operate on its premises does not make joint employer status more or less likely under the act. There is no indication that the retail company hires or fires the repair company’s employees, controls any other terms and conditions of their employment, determines their rate and method of payment, or maintains their employment records.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

DOL Issues Proposed Rule Updating Regular Rate Requirements

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, for the first time in more than 50 years, the U.S. Department of Labor today announced a proposed rule to clarify and update the regulations governing regular rate requirements.

Regular rate requirements define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.

Under current rules, employers are discouraged from offering more perks to their employees as those perks may be vaguely defined in calculating an employees’ regular rate of pay. The proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. According to the DOL, because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.

The Department proposes clarifications to confirm that employers may exclude the following from an employee’s regular rate of pay:

•    the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;

•    payments for unused paid leave, including paid sick leave;

•    reimbursed expenses, even if not incurred “solely” for the employer’s benefit;

•    reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;

•    discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;

•    benefit plans, including accident, unemployment, and legal services; and

•    tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, “call back” pay, and others. The public may submit comments about this proposed rule by 11:59 pm on May 28, 2019.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Strategies for Addressing Sexual Harassment in the Workplace; One Size Does Not Fit All

By Kathleen J. Jennings (kjj@wimlaw.com)

Today the U.S. Equal Employment Opportunity Commission (EEOC) convened an “Industry Leaders Roundtable Discussion on Harassment Prevention.” Representatives from a diverse group of industries and associations discussed challenges their members and the public face in addressing issues raised by the #MeToo movement. Participants also shared strategies they have implemented to improve workplace culture and reduce harassment.

  • Rosanna Maietta, Executive Vice President of Communications & Public Relations of the American Hotel & Lodging Association and President of the American Hotel and Lodging Educational Foundation, described the 5-Star Promise, a pledge to provide hotel employees with employee safety devices and to adopt enhanced policies, trainings and resources to improve hotel safety, including preventing and responding to sexual harassment and assault.
  • Andy Brantley, President and CEO of the College and University Professional Association for Human Resources, shared that “we cannot simply ‘train away’ harassment. Training and heightening awareness will always be important, but we must be committed to creating and sustaining workplace cultures that do not tolerate harassment in any way, shape or form.”
  • Stephanie Martz, Senior Vice President and General Counsel of the National Retail Federation, explained that “retailers recognize that training and a company culture of respect and inclusion are critical to effective prevention and compliance efforts.” She noted one challenge her organization and its members have identified is the importance of tailoring training to address the unique realities of the retail workplace.
  • Bobby Franklin, President and CEO of the National Venture Capital Association, emphasized that “harassment is interconnected with the lack of diversity and inclusiveness in our industry.” As a result, his organization surveys members to understand the scope of the harassment problem in their industry, and it has taken multiple steps to improve education by drafting model policies and a best practices guide.
  • James Banks, Jr., General Counsel of the Society for Human Resources Management, stated that his organization is providing human resource professionals with programming on workplace civility, inclusion, workplace investigations that can improve culture, and anti-harassment strategies. Mr. Banks explained that “the #MeToo movement has been a call to action for organizational leaders to assess their workplaces to ensure they have a healthy culture and live that culture in all they do.”

The Takeaway: In order for an employer to effectively deal with sexual harassment in the workplace, it must create a culture where harassment is not tolerated by anyone. Supervisor and employee training are tools that can help a company to achieve that goal, and they should be tailored to the needs of the particular industry and workforce. However, the commitment to a workplace culture that does not tolerate sexual harassment must start with upper management. And that means that sometimes upper management is going to have to make some difficult decisions if they learn that a valued manager or high performing employee has committed sexual harassment; if they take no action against that person, employees will see that the company is not willing to “put their money where their mouth is.”

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

DOL Announces Long Awaited Overtime Rule

By Kathleen J. Jennings (kjj@wimlaw.com)

Remember the proposed increase in the salary threshold for overtime eligibility that had been announced during the Obama Administration and then enjoined by a federal court in 2016? Since then, the Department of Labor has promised to issue a new rule with a new threshold that is lower than the one proposed by the Obama Administration, but higher than the existing threshold that was set in 2004.

The wait is over! Yesterday, the DOL announced a Notice of Proposed Rulemaking (NPRM) that it claims would make more than a million more American workers eligible for overtime. Under currently enforced law, employees with a salary below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week. Workers making at least this salary level may be eligible for overtime based on their job duties. This new proposal would update the salary threshold using current wage data, projected to January 1, 2020. The result would boost the standard salary level from $455 to $679 per week (equivalent to $35,308 per year).

The NPRM also includes the following provisions:

  • The proposal increases the total annual compensation requirement for “highly compensated employees” (HCE) from the currently-enforced level of $100,000 to $147,414 per year.
  • A commitment to periodic review to update the salary threshold. An update would continue to require notice-and-comment rulemaking.
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level.
  • No changes overtime protections for:
    • Police Officers
    • Fire Fighters
    • Paramedics
    • Nurses
    • Laborers including: non-management production-line employees
    • Non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and construction workers
  • No changes to the job duties test.
  • No automatic adjustments to the salary threshold.

 

This is not a final rule. The proposed rule will be published in the Federal Register and the public will be able to submit comments during a 60 day period. For more information, please visit https://www.dol.gov/whd/overtime2019/.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

The Fair Credit Reporting Act Needs Your Respect

By Kathleen J. Jennings (kjj@wimlaw.com)

The Fair Credit Reporting Act (FCRA) is one of those laws that often fails to get the respect it deserves. Just the sound of it—it seems to apply to credit reports, so why would an employer need to worry about it? Because the FCRA can also apply to applicant and employee background checks.

A recent decision from a federal court in New York shows us the potential legal consequences of failing to comply with the FCRA. In Garcia v. Execu , S.D.N.Y., No. 17-cv-9401, 2/19/19, Mr. Garcia was terminated on the second day of work because a criminal background check showed that he had open criminal charges. Mr. Garcia said the charges had been dismissed. His termination stood.

So Mr. Garcia filed a class action against the company that hired and fired him, alleging that it violated the FCRA by failing to provide him a copy of his consumer credit report or a written description of his FCRA rights before taking an adverse employment action against him based on the report. The federal district court denied the employer’s motion to dismiss the class allegations. Now the company must defend a class action simply because it failed to provide a copy of Mr. Garcia’s background check to him. This is an expensive lesson for that company.

Here’s what employers need to know about the FCRA: when a company runs background checks through a company in the business of compiling background information, it must comply with the FCRA. Specifically, the FCRA requires the following before the company seeks the background check:

  • Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
  • If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and got their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • won’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Additionally, when taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has the following additional requirements:

  • Before you take an adverse employment action, you must give the applicant or employee:
    • a notice that includes a copy of the consumer report you relied on to make your decision; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.

(By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.)

  • After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report;
    • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

DOL Issues New Enforcement Rules on Tipped Employees

by Kathleen J. Jennings (kjj@wimlaw.com)

Today, the Department of Labor (DOL) announced new enforcement rules for investigating businesses for potentially improperly paying food servers and other tipped workers. Specifically, Field Assistance Bulletin (FAB) No. 2019-2 explains that, consistent with WHD Opinion Letter FLSA2018-27 (Nov. 8, 2018), the Wage and Hour Division (WHD) will no longer prohibit an employer from taking a tip credit based on the amount of time an employee spends performing duties related to a tip-producing occupation that are performed contemporaneously with direct customer-service duties or for a reasonable time immediately before or after performing such direct-service duties

Under the revised FOH 30d00(f), WHD staff will determine whether a tipped employee’s non-tipped duties are related to the tipped occupation by using the following principles:

• Non-tipped duties listed as examples in 29 C.F.R. § 531.56(e), and non-tipped duties listed as core or supplemental for the appropriate tip-producing occupation in the Tasks section of the Details report in the Occupational Information Network (O*NET) [https://www.onetonline.org/], are related duties.

• An employer may take a tip credit for any amount of time that an employee spends on related, non-tipped duties performed contemporaneously with the tipped duties—or for a reasonable time immediately before or after performing the tipped duties—regardless whether those duties involve direct customer service.

• Employers may not take a tip credit for time spent performing any tasks that are not contained in 29 C.F.R. 531.56(e), or in the O*NET task list for the employee’s tipped occupation, or—for a new occupation without an O*NET description—in the O*NET task list for a similar occupation. Note, however, that some of the time that a tipped employee spends performing these tasks—which are unrelated to the employee’s tipped occupation—may be subject to the de minimis rule in 29 C.F.R. § 785.47.

Employers remain prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit under the FLSA. In addition, employers electing to use the tip credit provision must ensure tipped employees receive at least the minimum wage when direct (or cash) wages and the tip credit amount are combined. If an employee’s tips combined with the employee’s direct (or cash) wages do not equal the minimum hourly wage of $7.25 per hour, the employer must continue to make up the difference.

The Field Assistance Bulleting states that WHD staff should apply the new enforcement rules in investigations involving non-tipped duties performed by tipped employees on or after November 8,2018. As a matter of enforcement policy, WHD staff should also follow the revised guidance in FOH 30d00(f) in any open or new investigation concerning work performed prior to the issuance of WHD Opinion Letter FLSA2018-27 on November 8, 2018.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

When Love is in the Air At Work

By Kathleen J. Jennings kjj@wimlaw.com)

Happy Valentine’s Day! This holiday is good time for companies to check their policies on workplace romance and see how they are working.

What are the essential elements of a workplace romance policy?

First, transparency. Workplace romance is going to happen, and the employer can better manage workplace relationships when it knows they exist. A good policy will require employees, particularly upper managers, to disclose romantic relationships with other employees. Why is this any of the company’s business? Because the company needs to ensure that someone is not in the supervisory chain of command of an employee he or she is dating. When an employee has authority over an employee that she or she is dating, that differential in power may be portrayed as sexual harassment when the relationship fails. There may also be risk of disclosure of company confidential information to a subordinate or employee who is not authorized to receive the information during “pillow talk.”.

Because transparency is important, there should be real consequences for employees who fail to report workplace relationships. For example, it has been reported recently that Bridgewater Associates, the $160 billion investment, fired a senior manager for failing to disclose a relationship with a colleague in accordance with company policy.

Second, the policy should make it clear it is not acceptable for a supervisor to date a subordinate employee over whom he or she has authority.

Third, the policy should remind employees who are dating that their behavior at work should always remain professional. No PDA in the workplace, please. Also—no hanging around your boo’s office all day long.

Fourth, the policy should also remind employees of the company’s policy against sexual harassment, and that they may report conduct that they consider to be unwanted and inappropriate.

Consider this: some estimates suggest that 70% of workers have had an office romance, with as many as 25-50% turn into marriage (as cited in Wilson, 2015). Employers cannot prevent romance in the workplace, but they can manage it so that it does not undermine employee morale and productivity.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.