Denise M. Heekin of Bryant Miller Olive.

Consensual romantic relationships happen at work. Some blossom into lifelong connections, while others cause only headaches for those involved and potential liability for employers. As such, it is imperative that employers have policies that address these situations. It may not be reasonable to have an absolute "relationship ban" for every level of the organization. However, for those higher on the food chain, or whenever there are power imbalances, it is necessary that employers address its expectations.

This became apparent with the recent separation of the chief executive officer at fast-food giant, McDonald's. Steve Easterbrook was fired from McDonald's after he engaged in a consensual relationship with an employee in violation of the company's policy. After an investigation of the relationship by McDonald's, the board decided to terminate Easterbrook's employment, citing "poor judgment" on the part of the CEO. The CEO did eventually admit that it was a mistake to flout company policy and agreed to leave. It should not have taken an investigation for him to reach this conclusion, particularly in light of the #MeToo movement and the public's awareness of and sensitivity to relationships where there is a clear imbalance of power. However, what if McDonald's did not have a policy banning such workplace relationships? Would the board still have been correct to seek the CEO's termination? The simple answer is, "yes."

Whenever there is an imbalance of power in a romantic workplace relationship—in this case, CEO/manager/supervisor and a subordinate employee—it calls into question the judgment of the individual who holds the power to affect the working conditions of the other. Sometimes the consensual relationship turns into an epic bad break-up, sometimes even a "Fatal Attraction" kind of break-up. This situation can lead to lawsuits with claims of workplace discrimination or even assault and battery. Such claims can result in damages, including emotional distress and punitive damages, for employers and the individuals involved. Putting an employer at risk of liability for such conduct constitutes poor judgment by anyone's definition. While there might not be a policy violation because there was no stated policy banning such conduct, poor judgment for supervisory, managerial or executives can result in termination of employment. It should go without saying that poor judgment is a disqualifying characteristic for most managerial-level employees and certainly top executives.

The first step in crafting an office romance policy is for the employer to determine whether it wants an outright ban on such relationships, a policy that allows for the relationships but requires disclosure and job reassignment if there is a direct reporting relationship, or some combination of both. The fact is, the more power an employee wields, the more liability they can cause for an employer. As such, it might be wise for an employer to have a policy that prohibits executives from having any type of intimate relationship with other employees. For lower-level managerial employees, a policy could require that the parties disclose the beginning and ending of a consensual relationship along with a voluntary reassignment of one of the parties to a position that is not within the line of supervision of the other party or a voluntary separation from employment. And, of course, the policy must have some type of reporting mechanism to address the fallout from the cessation of the relationship.

The problems with workplace romances, particularly when there is an imbalance of power, should seem obvious to all, questioning the need to have any type of prohibition written into policy. Good judgment would typically be enough to discourage employees, particularly those up the food chain, from engaging in such relationships. Yet, having a policy banning workplace romances made it undeniable in the McDonald's situation that there had been a violation of company policy and it led to the CEO's agreement to leave. For employers, it is wise to have a written policy about office relationships. Whether the policy prohibits any and all romantic relationships or whether it is geared toward specific levels of employees within the management chain, it is a wise decision for all employers to put its expectations in writing.

Denise M. Heekin is a member of Bryant Miller Olive's labor and employment practice group and serves as the firm's managing shareholder in its Miami office. She is board-certified in labor and employment law by the Florida Bar. Contact her at [email protected].